People v. Avellanet

272 A.D.2d 406, 708 N.Y.S.2d 417, 2000 N.Y. App. Div. LEXIS 5051

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 2000
• Status: Published

Opinion

—Appeals by the defendant from two amended judgments of the County Court, Dutchess County (Dolan, J.), both rendered September 25, 1998, revoking concurrent sentences of probation previously imposed by the same court, upon a finding that he violated conditions thereof, after a hearing, and imposing sentences of imprisonment upon his prior convictions of aggravated unlicensed operation of a motor vehicle in the first degree under Indictment No. 53/97 and driving while intoxicated under Superior Court Information No. 115/97.

Ordered that the amended judgment rendered under Superior Court Information No. 115/97 is affirmed; and it is further,

Ordered that the amended judgment rendered under Indictment No. 53/97 is reversed, on the law, the charge of violating the terms of the defendant’s probation for his conviction of aggravated unlicensed operation of a motor vehicle in the first degree is dismissed, and the sentence imposed thereon is vacated.

The evidence adduced at the hearing was sufficient to establish that the defendant violated the terms of his probation for his conviction of driving while intoxicated (see, People v McCaffrey, 254 AD2d 304; People v Stoliker, 94 AD2d 854). However, as the defendant was not informed that he was also being charged with violating the terms of his probation for his conviction of aggravated unlicensed operation of a motor vehicle in the first degree, the court improperly determined that he violated the terms of his probation for that crime (see, CPL 410.70 [2]).

The defendant’s remaining contentions are either without merit or academic. Ritter, J. P., Joy, S. Miller and H. Miller, JJ., concur.