SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

175 

KA 11-00329 

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND LINDLEY, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

SCOTT P. FARRELLY, DEFENDANT-APPELLANT. 

ADAM H. VAN BUSKIRK, AURORA, FOR DEFENDANT-APPELLANT. 

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (DIANE M. ADSIT OF

COUNSEL), FOR RESPONDENT. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE

OF COUNSEL), IN HIS STATUTORY CAPACITY UNDER EXECUTIVE LAW § 71. 

 

Appeal from a judgment of the Cayuga County Court (Mark H.

Fandrich, A.J.), rendered February 1, 2011. The judgment convicted

defendant, upon his plea of guilty, of driving while intoxicated, a

class D felony and unlawful fleeing a police officer in a motor

vehicle in the third degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon his plea of guilty of felony driving while intoxicated ([DWI]

Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]) and unlawful

fleeing a police officer in a motor vehicle in the third degree (Penal

Law § 270.25). We reject defendant’s contention that the restitution

order in favor of one of the victims does not correspond with the

conditions of restitution set at sentencing. County Court assured

defendant at sentencing that he would not have to pay restitution

twice in the event that the victim recovered insurance proceeds for

the damage defendant caused to his house, and the restitution order

does not conflict with that statement. Defendant’s further contention

that the court erred in ordering restitution in excess of the

statutory cap is without merit inasmuch as defendant consented to the

amount of restitution (see § 60.27 [5] [a]).

Defendant contends that he should not have been sentenced to a

period of probation with an ignition interlock device requirement

following his sentence of incarceration. He contends that only

aggravated DWI offenders (see Vehicle and Traffic Law § 1192 [2-a])

are subject to the mandatory supervision and ignition interlock device

requirements set forth in, inter alia, Vehicle and Traffic Law § 1198

for crimes committed prior to August 15, 2010 and that non-aggravated
-2- 175 

KA 11-00329 

DWI offenders such as himself are subject to those requirements only

for offenses committed on or after August 15, 2010. We reject those

contentions and conclude that defendant misreads the relevant

statutes. Pursuant to L 2009, ch 496, § 15, the amendments to, inter

alia, Vehicle and Traffic Law § 1198, are applicable to defendant

inasmuch as he was sentenced after they took effect, i.e., after

August 15, 2010. Defendant failed to preserve for our review his

further contentions that those amendments are unconstitutional in

several respects (see generally People v Rivera, 9 NY3d 904, 905;

People v Davidson, 98 NY2d 738, 739-740; People v Korber, 89 AD3d

1543), and we decline to exercise our power to review those

contentions as a matter of discretion in the interest of justice (see

CPL 470.15 [6] [a]).

Entered: February 17, 2012 Frances E. Cafarell

Clerk of the Court