People v. Finnerty

78 A.D.2d 554, 432 N.Y.S.2d 19, 1980 N.Y. App. Div. LEXIS 12906

Opinion

Appeal by the People, as limited by their brief, from sentences of the County Court, Westchester County, imposed October 15, 1979, upon defendant’s convictions of forgery in the second degree and criminal possession of a forged instrument in the second degree (both class D felonies), upon a jury verdict, the sentences being concurrent indeterminate terms of imprisonment of from one and one-half to three years. (Defendant was sentenced as a second felony offender.) Sentences vacated, on the law, and matter remitted to the County Court, Westchester County, for resentencing in. accordance with section 70.06 of the Penal Law. The trial court imposed sentence under the erroneous impression that a sentence of one and one-half to three years’ imprisonment was the legal minimum for a second felony offender convicted of a class D felony (see Penal Law, § 70.06, subd 3, par [d]; subd 4, par [b]). We do not agree with defendant’s contention that any sentence greater than this, when imposed upon an individual with his prior record, would constitute "cruel and inhuman punishment”. Mollen, P. J., Lazer, Cohalan and Margett, JJ., concur.