People v. Bagarozy

Appellate Division of the Supreme Court of New York

People v. Bagarozy

152 A.D.2d 478, 543 N.Y.S.2d 454, 1989 N.Y. App. Div. LEXIS 9403

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 13, 1989

StatusPublished

This text of 152 A.D.2d 478 (People v. Bagarozy) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Bagarozy, 152 A.D.2d 478, 543 N.Y.S.2d 454, 1989 N.Y. App. Div. LEXIS 9403 (N.Y. Ct. App. 1989).

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Opinion

Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered July 17, 1986, which convicted defendant of violation of two sentences of probation and sentenced him to concurrent prison terms of 2 Vs to 7 years and 1 to 3 years, unanimously modified, as a matter of discretion in the interest of justice, to reduce the sentence to one prison term of IVs to 4 years to cover both indictments, and otherwise affirmed.

In 1983, defendant was sentenced to two consecutive five-[479]*479year periods of probation for his convictions under indictments Nos. 62/82 and 965/82. In 1986, on new charges, defendant was convicted of two counts of second degree sodomy and sentenced to consecutive 3Vit-to-7-year terms. Accordingly, based on this conviction, defendant’s two terms of probation were revoked and the trial court imposed the instant sentence of concurrent terms of imprisonment of 21ó to 7 and 1 to 3 years.

However, this court reversed defendant’s 1986 sodomy convictions and ordered a new trial (132 AD2d 225). Upon retrial, defendant was convicted of only one count of sodomy in the second degree (Tonetti, J.) on March 31, 1989. While defendant’s sentencing on this sodomy charge was adjourned until August 1989, the court indicated on the record that it would impose the minimum sentence of 2 to 4 years.

This represents a significant change of circumstances, which, under the unique facts of this case, warrants a reduction in defendant’s sentence for the violation of probation. When the court originally imposed the maximum 2Vá-to-7-year sentence for violation of probation, it took into account that defendant had been convicted, after jury trial, of two counts of sodomy in the second degree and was facing consecutive 3 Vito-7-year terms. After the reversal of the conviction by this court and the subsequent retrial, defendant was acquitted of one of these charges and stands convicted of only one count of sodomy for which the minimum sentence will be imposed. In light of this change in circumstances, the sentence for violation of probation should be reduced to comport with the sentence for the new felony conviction. Accordingly, we reduce the sentence for the violation of probation to lVa to 4 years. Concur — Sullivan, J. P., Ross, Kassal, Ellerin and Rubin, JJ.

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Judgment, Supreme Court, Bronx County (Joseph Cerbone, J.), rendered July 17, 1986, which convicted defendant of violation of two sentences of probation and sentenced him to concurrent prison terms of 2 Vs to 7 years and 1 to 3 years, unanimously modified, as a matter of discretion in the interest of justice, to reduce the sentence to one prison term of IVs to 4 years to cover both indictments, and otherwise affirmed.

In 1983, defendant was sentenced to two consecutive five-[479]*479year periods of probation for his convictions under indictments Nos. 62/82 and 965/82. In 1986, on new charges, defendant was convicted of two counts of second degree sodomy and sentenced to consecutive 3Vit-to-7-year terms. Accordingly, based on this conviction, defendant’s two terms of probation were revoked and the trial court imposed the instant sentence of concurrent terms of imprisonment of 21ó to 7 and 1 to 3 years.

However, this court reversed defendant’s 1986 sodomy convictions and ordered a new trial (132 AD2d 225). Upon retrial, defendant was convicted of only one count of sodomy in the second degree (Tonetti, J.) on March 31, 1989. While defendant’s sentencing on this sodomy charge was adjourned until August 1989, the court indicated on the record that it would impose the minimum sentence of 2 to 4 years.

This represents a significant change of circumstances, which, under the unique facts of this case, warrants a reduction in defendant’s sentence for the violation of probation. When the court originally imposed the maximum 2Vá-to-7-year sentence for violation of probation, it took into account that defendant had been convicted, after jury trial, of two counts of sodomy in the second degree and was facing consecutive 3 Vito-7-year terms. After the reversal of the conviction by this court and the subsequent retrial, defendant was acquitted of one of these charges and stands convicted of only one count of sodomy for which the minimum sentence will be imposed. In light of this change in circumstances, the sentence for violation of probation should be reduced to comport with the sentence for the new felony conviction. Accordingly, we reduce the sentence for the violation of probation to lVa to 4 years. Concur — Sullivan, J. P., Ross, Kassal, Ellerin and Rubin, JJ.

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Bluebook (online)

152 A.D.2d 478, 543 N.Y.S.2d 454, 1989 N.Y. App. Div. LEXIS 9403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bagarozy-nyappdiv-1989.

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