People v. Barnum

53 A.D.3d 1054, 862 N.Y.S.2d 231

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 2008
• Status: Published

Opinion

Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), rendered December 20, 2005. The judgment revoked defendant’s sentence of probation and imposed a sentence of imprisonment.

It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Wayne County Court for resentencing.

Memorandum: Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of assault in the second degree (Penal Law § 120.05 [9]) and endangering the welfare of a child (§ 260.10 [1]) and, according to the sentencing minutes, County Court sentenced defendant to a five-year term of imprisonment and a period of postrelease supervision. Although according to the certificate of conviction concurrent sentences of five years of imprisonment were imposed, the record establishes that the court “failed to impose a sentence for each count of which defendant was convicted” (People v Bradley, 52 AD3d 1261, 1262 [2008]). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing. We note in addition that, in any event, a sentence of imprisonment of five years would be illegal with respect to the count of endangering the welfare of a child, a class A misdemeanor (see Penal Law § 70.15 [1]). In light of our determination, we do not address defendant’s challenge to the severity of the sentence. Present—Scudder, P.J., Lunn, Fahey, Pine and Gorski, JJ.