People v. Garcia

25 A.D.3d 620, 806 N.Y.S.2d 883

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 2006
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered September 4, 2003, convicting him of attempted criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by providing that the indeterminate sentence imposed in this case be served concurrently with a previously-imposed sentence of a determinate term of imprisonment of one year for a probation violation; as so modified, the judgment is affirmed.

In an unrelated matter, the defendant was sentenced to a determinate term of imprisonment of one year for a probation violation. That sentence was imposed and undischarged at the time the sentencing court in this case imposed an indeterminate term of imprisonment of one to three years, upon the defendant’s plea of guilty to attempted criminal possession of a controlled substance in the fifth degree. The sentencing court was silent on the issue of whether the indeterminate sentence imposed herein should run consecutively or concurrently with the prior, probation violation sentence. Accordingly, by operation of law, and in light of the People’s concession in this case that the two sentences “necessarily merged,” the sentences must run concurrently (see People v Pitts, 75 AD2d 719 [1980]).

The defendant’s remaining contentions either have been waived, or are without merit. H. Miller, J.P., Cozier, Ritter and Dillon, JJ., concur.