—[*1] The Legal Aid Bureau of Buffalo, Inc., Buffalo (Jessamine I. Jackson of counsel), for defendant-appellant.

Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of counsel), for respondent.

Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered April 17, 2006. The judgment convicted defendant, upon his plea of guilty, of felony driving while intoxicated.

It is hereby ordered that the judgment so appealed from 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: On appeal from a judgment convicting him upon his plea of guilty of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c] [i]), defendant contends that County Court erred in imposing a fine at sentencing in addition to the promised term of incarceration. Under the unique circumstances of this case, in which the People agree with defendant that the court improperly enhanced the sentence by imposing a fine in addition to the promised term of incarceration, and in which the People join in defendant's request that we modify the sentence to conform to the promised sentence, we modify the judgment as a matter of discretion in the interest of justice by vacating the fine. Present—Hurlbutt, J.P., Smith, Centra, Lunn and Fahey, JJ.