SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

512 

KA 15-01365 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND NEMOYER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MICHAEL J. REGATUSO, II, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DANIELLE C. WILD OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Wyoming County Court (Michael M.

Mohun, J.), rendered May 13, 2015. The judgment convicted defendant,

upon a jury verdict, of criminal sale of a controlled substance in the

third degree, criminal possession of a controlled substance in the

third degree (two counts), criminal possession of a controlled

substance in the seventh degree and unlawful possession of marihuana. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by vacating the fine imposed for

criminal possession of a controlled substance in the third degree

under count 2 of the indictment and as modified the judgment is

affirmed. 

Memorandum: In appeal No. 1, defendant appeals from a judgment

convicting him upon a jury verdict of, inter alia, criminal sale of a

controlled substance in the third degree (Penal Law § 220.39 [1]) and

two counts of criminal possession of a controlled substance in the

third degree (§ 220.16 [1]). In appeal No. 2, defendant appeals from

a judgment convicting him upon a jury verdict of, inter alia, seven

counts each of criminal sale of a controlled substance in the third

degree (§ 220.39 [1]) and criminal possession of a controlled

substance in the third degree (§ 220.16 [1]). County Court sentenced

defendant as a second felony offender to concurrent determinate terms

of incarceration, to be followed by a period of postrelease

supervision, and imposed fines aggregating $25,500.

We reject defendant’s contention that the certificates of

conviction are at variance with the court’s pronouncement of the

sentence. The sentencing minutes reflect that the court imposed fines

for certain offenses, and those fines were then aggregated and

correctly recorded in the certificates of conviction. We reject
-2- 512 

KA 15-01365 

defendant’s further contention that a court may not aggregate fines

when it imposes concurrent terms of incarceration (see e.g. People v

Petell, 128 AD3d 1283, 1283; People v Miller, 57 AD3d 1009, 1009-

1010). We agree with defendant, however, that the fines are illegal

to the extent the court imposed a fine on both a conviction for

criminal sale of a controlled substance in the third degree and

criminal possession of a controlled substance in the third degree that

arose from a single act (see Penal Law § 80.15; People v Wiley, 67

AD3d 1370, 1372, lv denied 14 NY3d 845; People v Atwood, 2 AD3d 1331,

1332, lv denied 3 NY3d 636). We therefore modify the judgment in

appeal No. 1 by vacating the fine imposed on count 2 of the

indictment, and modify the judgment in appeal No. 2 by vacating the

fines imposed on counts 3, 5, 7, 9, 11, 13, and 15 of the indictment.

Entered: June 17, 2016 Frances E. Cafarell

Clerk of the Court