People v. Hall

5 A.D.3d 1011, 773 N.Y.S.2d 632, 2004 N.Y. App. Div. LEXIS 2841

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 2004
• Status: Published

Opinion

Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered December 14, 2001. The judgment revoked defendant’s probation and imposed a sentence of imprisonment.

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

Memorandum: Defendant appeals from a judgment sentencing him upon his admission that he violated the terms and conditions of his sentence of probation. Defendant’s contention that the original sentence of six months of imprisonment and five years of probation violated Penal Law § 60.05 (4) is not properly before us because, as defendant concedes, he did not appeal from the original judgment (see People v Brown, 307 AD2d 759 [2003]; People v Dabbs, 178 AD2d 848 [1991], lv denied 79 NY2d 946 [1992]). Although not raised by defendant, we note that there is a discrepancy between the certificate of conviction and the sentencing minutes. The certificate of conviction provides that a term of imprisonment of 41/2 to 131/2 years was imposed, which is a legal sentence, but the sentencing minutes establish that County Court imposed a term of imprisonment of 41/2 to 121/2 years, which is not a legal sentence. We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing (see People v Freeney, 291 AD2d 913 [2002], lv denied 98 NY2d 637 [2002]; see also People v Schenk, 294 AD2d 914, 915 [2002], lv denied 98 NY2d 702 [2002]). Present—Pigott, Jr., P.J., Pine, Wisner, Scudder and Kehoe, JJ.