The People of the State of New York, Respondent, v. Dean S. Tuszynski, Appellant

The People of the State of New York, Respondent, v Dean S. Tuszynski, Appellant. [706 NYS2d 650] [MAJORITY] —Judgment unanimously modified on the law and as modified affirmed and matter remitted to Onondaga County Court for resentencing upon count three of the indictment in accordance with the following Memorandum: Defendant pleaded guilty to felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c]) and aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a]). Defendant failed to move to withdraw his plea or to vacate the judgment of conviction and thus has failed to preserve for our review his challenge to the factual sufficiency of the guilty plea (see, People v Lopez, 71 NY2d 662, 666). Defendant’s recitation of the facts does not cast significant doubt upon the guilty plea or otherwise call into question the voluntariness of the plea (see, People v Lopez, supra, at 666). The People concede that the sentence for aggravated unlicensed operation is unlawful because the maximum sentence of incarceration for a class E felony is lVs to 4 years (see, Penal Law § 70.00 [2] [e]; [3] [b]). We thus modify the judgment by vacating the sentence imposed for aggravated unlicensed operation of a motor vehicle in the first degree, and we remit this matter to Onondaga County Court for resentencing upon count three of the indictment. (Appeal from Judgment of Onondaga County Court, Burke, J. — Felony Driving While Intoxicated.) Present — Pigott, Jr., P. J., Wisner, Scudder and Lawton, JJ.