
    The People of the State of New York, Respondent, v James L. Schlau, Appellant.
    [749 NYS2d 924]
   Appeal from a judgment of Supreme Court, Erie County (Buscaglia, J.), entered March 30, 2000, convicting defendant upon his plea of guilty of felony driving while intoxicated.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by vacating the fine and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [ii]). He was sentenced to a one-year term of incarceration and was ordered to pay a fine of $5,000. It is undisputed that defendant was indigent at the time of sentencing and that the fine was not discussed as part of defendant’s plea agreement. Furthermore, Supreme Court did not set forth its basis for determining the amount of the fine. Under the circumstances of this case, we modify the judgment by vacating the fine. Present — Green, J.P., Wisner, Hurlbutt, Burns and Gorski, JJ.  