People v. Garcia

143 A.D.2d 842, 533 N.Y.S.2d 383, 1988 N.Y. App. Div. LEXIS 10175

Opinion

Appeal by the People from a sentence of the Supreme Court, Kings County (Miller, J.), imposed June 17, 1987, upon the defendant’s conviction of robbery in the second degree, upon his plea of guilty, the sentence being a term of five years’ probation.

Ordered that the sentence is vacated, on the law, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

The People assert and the defendant concedes that the sentence of probation, imposed upon his conviction for the crime of robbery in the second degree, a class C felony offense (see, Penal Law § 160.10), is illegal and that a sentence of incarceration is statutorily mandated (see, Penal Law § 70.02 [1] [b]; [3] [b]; [4]). Accordingly, the sentence is vacated and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance with the law (see, People v Royster, 96 AD2d 519). Mollen, P. J., Brown, Weinstein and Fiber, JJ., concur.