People v. Woodard

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Steuben County Court for further proceedings in accordance with the following Memorandum: Upon the misapprehension that it was required to do so by Penal Law § 70.25 (1), County Court imposed sentences upon defendant that were consecutive to the unexpired term of a prior DWI conviction. Actually, the court had the discretion to impose concurrent sentences but it "erroneously perceived that it had no discretion to exercise” (People v Cronin, 60 NY2d 430 , 433; see, People v Horn, 161 AD2d 492 ; People v Taylor, 27 AD2d 692 ). The failure of the court to apprehend the extent of its discretion was a departure from the " 'essential nature’ of the right to be sentenced as provided by law” (People v Fuller, 57 NY2d 152 , 156).

Therefore, defendant’s sentences are vacated and the matter is remitted to Steuben County Court for resentencing.

We reject the contention that defendant was deprived of effective assistance of counsel (see, People v Bethany, 182 AD2d 1084 , lv denied 80 NY2d 828 ). (Appeal from Judgment of Steuben County Court, Purple, Jr., J. — Felony Driving While Intoxicated.) Present — Green, J. P., Pine, Lawton, Doerr and Boehm, JJ.