Defendant pleaded guilty to a superior court information which charged him with driving while intoxicated (Vehicle and Traffic Law §1192 [3]), as a class E felony). This court sentenced defendant to a definite sentence of one year incarceration, and pursuant to Penal Law §60.21, a consecutive five year term of probation. The conditions of which included a $1,000.00 fine, a mandatory surcharge and the installation of an ignition interlock device on any vehicle owned or driven by him. On March 13, 2015, defendant admitted to violating probation, with the promise that he would be monitored by the court for nine months and restored to probation if he was compliant with the probation terms, but no promise on the sentence if he was not. On June 25, 2015, the court revoked the probation term and sentenced defendant to an indeterminate term of one and a third to four years with the department of corrections, and a three year conditional discharge to be served consecutively to the period of imprisonment.Defendant now moves to set aside his sentence pursuant to CPL 440.20(1) in that the sentence was unauthorized or otherwise invalid as a matter of law. In support, defendant relies on People v. Coon (156 AD3d 105 [3d Dept 2017]) and People v. Zibrel (159 AD3d 1545 [4th Dept 2018]) for the proposition that in a driving while intoxicated case, where a court imposed a non-revocable sentence and a consecutive revocable sentence pursuant to Penal Law §60.21, a defendant may not be incarcerated further for violating the terms of the consecutive revocable sentence. As a result, defendant asks the court to resentence him to an unconditional discharge. The People concede that Coon and Zibrel apply and do not oppose defendant’s application to be resentenced to an unconditional discharge.Since the enactment of Penal Law §60.21, courts have toiled with the proper sentence to impose following a finding that a defendant has violated a consecutive revocable sentence imposed pursuant to that section. In 2016, the Fourth Department dealt with a factual scenario identical to this case (People v. Freeman, 144 AD3d 1581 [4th Dept 2016]). In Freeman, the defendant was convicted of driving while intoxicated and driving while intoxicated, per se, as a class E felonies. The trial court initially imposed a sentence of two one year concurrent terms of imprisonment, followed by five years probation.Defendant served his sentence of imprisonment, and then allegedly violated his probation. Following a hearing on the violation, the trial court revoked the probation component of the defendant’s sentence and sentenced him to two concurrent one and a third to four year terms of imprisonment. The Fourth Department found that the trial court properly determined that the People met their burden of establishing that the defendant violated the terms of probation and that the sentence was not unduly harsh or severe.In 2017, People v. Coon (156 AD3d 105 [3d Dept 2017]) also dealt with a factual scenario similar to this case. In Coon, the defendant was convicted of driving while intoxicated as a class D felony and was sentenced to a definite jail term of one year followed by a three year term of conditional discharge, pursuant to PL §60.21. Defendant completed the jail sentence, but later violated the terms of his conditional discharge, and was sentenced to two to six years incarceration followed by a three year conditional discharge.The court found the additional term of imprisonment based upon the violation of the conditional discharge was an unauthorized sentence because the defendant already completed his term of imprisonment pursuant to PL §70.00(4). Notwithstanding such, the court noted that while the defendant could not be resentenced to imprisonment for violating a conditional discharge pursuant to PL §60.03(3)(a), a term of probation or a fine would be authorized.In 2018, the Fourth Department again dealt with a factual scenario identical to this case1 in People v. Zibrel (159 AD3d 1545 [4th Dept 2018]). The Zibrel court adopted the reasoning in Coon, and held that where a defendant is sentenced to and completes a definite or indeterminate jail sentence, they “cannot be subjected to additional prison time under the guise of a sentence based on a probation or conditional discharge violation when, in fact, he was resentenced for the initial offense” (id.).This court agrees with the parties that the holding of Zibrel applies to the instant case. Moreover, because Zibrel was the last case decided by the Fourth Department on the issue, the court is required to follow the ruling (People v. Peque, 22 NY3d 168, 194 [2013]). Pursuant to such, after the defendant completed his definite sentence of one year incarceration, the court was not authorized to resentence the defendant to additional prison time following the revocation of probation. In addition, this court disagrees with Coon as to whether it would be lawful to revoke probation or a conditional discharge and impose another sentence such as a term of probation or a fine (id. at 110), since the imposition of any other sentence following the completion of definite or indeterminate jail sentence would be unauthorized and would violate Double Jeopardy.2The Double Jeopardy Clause of the United States Constitution provides for protection “against multiple punishments for the same offense” (North Carolina v. Pearce, 395 US 711, 717 [1969], People v. Williams, 14 NY3d 198, 214 [2010], People v. Gonzalez, 99 NY2d 76, 82 [2002]). Moreover, as explained in Zibrel, a resentence of additional prison time in this case would merely be a guise of a sentence based upon a probation or conditional discharge violation when, in fact, it would be a resentencing for the initial offense after the sentence was served, and therefore would violate the Double Jeopardy Clause.Based upon the aforementioned, the defendant’s motion to set aside the sentence pursuant to CPL 440.20(1) is granted as the sentence imposed was unauthorized because it constituted an additional punishment. The court notes that the judgment of conviction for driving while intoxicated, the one year definite jail sentence previously served, and the judgment revoking probation remain. However, the court is without authority to resentence the defendant to additional punishment. As such, the defendant is resentenced to the one year jail sentence previously imposed and served without further conditions.3DATED: June 27, 2018Rochester, New York
