People v. Eberling

256 A.D.2d 1217, 683 N.Y.S.2d 455, 1998 N.Y. App. Div. LEXIS 14387

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 31, 1998
• Status: Published

Opinion

—Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: County Court did not abuse its discretion in refusing to sentence defendant as a youthful offender and in enhancing the terms of incarceration imposed on the conviction of robbery in the second degree (two counts) (Penal Law §§20.00, 160.10 [1], [2] [a]) and conspiracy in the third degree (Penal Law §§ 20.00, 105.13) from concurrent terms of IV2 to 4 years to concurrent terms of 2 to 6 years based on the failure of defendant to appear for his scheduled interview with the Probation Department. Further, we conclude that those portions of the sentence are not unduly harsh or severe. However, the term of incarceration of 2 to 6 years imposed on the conviction of grand larceny in the fourth degree, a class E felony, exceeds the maximum term authorized by statute and is unlawful. Thus, we modify the judgment by reducing that sentence to a term of incarceration of IV3 to 4 years. (Appeal from Judgment of Monroe County Court, Connell, J. — Robbery, 2nd Degree.) Present — Denman, P. J., Pine, Pigott, Jr., Balio and Fallon, JJ.