The People of the State of New York, Respondent, v. Peter Sofia, Appellant

The People of the State of New York, Respondent, v Peter Sofia, Appellant. [608 NYS2d 254] [MAJORITY] Appeals by the defendant from two judgments of the Supreme Court, Suffolk County (Rohl, J.), both rendered June 9, 1993, convicting him of driving while intoxicated as a felony (one count under each indictment), upon his pleas of guilty, and imposing sentences. Ordered that the judgments are affirmed, and the matters are remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (5). The defendant pleaded guilty to two counts of driving while intoxicated as a felony in exchange for two concurrent sentences of six months’ incarceration as conditions of concurrent terms of five years’ probation. Following the entry of his pleas, but prior to the imposition of sentence, the defendant moved pursuant to Vehicle and Traffic Law § 1196 (4) to strike the conditions of probation requiring him to serve terms of imprisonment on the ground that he had already completed the alcohol and drug rehabilitation program established by Vehicle and Traffic Law § 1196 (1). The Supreme Court denied the motion. The defendant now contends that the court erred in doing so. We disagree. As the language of Vehicle and Traffic Law § 1196 (4) and 15 NYCRR 134.3 makes clear, whether a defendant may enroll in the alcohol and drug rehabilitation program established by Vehicle and Traffic Law § 1196 (4) is a matter to be addressed by the court at sentencing. Thompson, J. P., Rosenblatt, Ritter, Krausman and Friedmann, JJ., concur.