SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
141
KA 14-00066
PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND VALENTINO, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JAMES H. SCHOLZ, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)
ADAM H. VAN BUSKIRK, AUBURN, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Cayuga County Court (Mark H.
Fandrich, A.J.), rendered May 28, 2013. The judgment convicted
defendant, upon his plea of guilty, of driving while intoxicated, a
misdemeanor, and criminal possession of a controlled substance in the
seventh degree.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: In these four appeals, defendant appeals from
judgments convicting him upon his plea of guilty of, inter alia,
driving while intoxicated as a misdemeanor (Vehicle and Traffic Law §
1192 [3]), burglary in the third degree (Penal Law § 140.20) and
criminal contempt in the second degree (§ 215.50 [3]). The charges
arose from four separate indictments filed against defendant for
crimes he committed over a period of approximately two years.
Consistent with the terms of the plea agreement, County Court
sentenced defendant to concurrent terms of imprisonment. For the
driving while intoxicated conviction, the court sentenced defendant to
time served along with 36 months of ignition interlock device (IID)
probation, to commence upon defendant’s release from prison.
We note at the outset that we dismiss the appeals from the
judgments in appeal Nos. 1, 3 and 4 because defendant raises no
contentions with respect thereto (see generally People v Minemier
[appeal No. 1], ___ AD3d ___, ___ [Jan. 2, 2015]). We reject
defendant’s contention in appeal No. 2 that the court erred in
directing that the IID probation commence upon his release from
prison. Penal Law § 60.21 provides that, when a person is to be
sentenced for driving while intoxicated, “the court may sentence such
person to a period of imprisonment authorized by article seventy of
this title and shall sentence such person to a period of probation or
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KA 14-00066
conditional discharge in accordance with the provisions of section
65.00 of this title and shall order the installation and maintenance
of a functioning [IID].” The statute further provides that “[s]uch
period of probation or conditional discharge shall run consecutively
to any period of imprisonment and shall commence immediately upon such
person’s release from imprisonment” (emphasis added). We interpret
the phrase “any period of imprisonment” to mean any period of
imprisonment imposed on any offense, and not, as defendant suggests,
any period of imprisonment imposed for driving while intoxicated.
Thus, we conclude that the court properly directed that defendant’s
term of IID probation for driving while intoxicated run consecutively
to the sentences imposed for the other counts.
We have reviewed defendant’s remaining contentions in appeal No.
2 and conclude that they lack merit.
Entered: February 13, 2015 Frances E. Cafarell
Clerk of the Court