People v. O'Brien

— Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: The People candidly concede that defendant’s sentence of one year’s incarceration and five years’ probation for his conviction of two counts of felony driving while intoxicated was illegal (see, Penal Law § 60.01 [2] [d]; § 65.00; see also, People v Curkendall, 141 AD2d 891; People v McIntyre, 135 AD2d 920). Defendant’s sentence is therefore modified by vacating the provision imposing probation (see, People v Jackson, 144 AD2d 1031). Because defendant’s sentence of probation was prohibited, that sentence cannot serve as a basis for a finding of a violation of probation (see, People v DeFrancesco, 136 AD2d 560). (Appeal from Judgment of Supreme Court, Monroe County, Bergin, J.— Felony Driving While Intoxicated.) Present — Green, J. P., Pine, Lawton, Fallon and Davis, JJ.