
    The People of the State of New York, Respondent, v John E. Smith, Appellant.
    (Appeal No. 2.)
    [765 NYS2d 812]
   Appeal from a judgment of Erie County Court (Drury, J.), entered January 3, 2001, convicting defendant upon his plea of guilty of, inter alia, driving while intoxicated as a felony.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence imposed on the count of driving while intoxicated as a class D felony and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing in accordance with the same Memorandum as in People v Smith (309 AD2d 1282 [2003]). Present — Hurlbutt, J.P., Scudder, Kehoe, Gorski and Lawton, JJ.  