People v. Irizarry

94 A.D.3d 444, 941 N.Y.S.2d 490

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 2012
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered July 1, 2010, convicting defendant, upon his plea of guilty, of auto stripping in the second degree and four counts of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of four to eight years, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and the sentence and remanding for resentencing, and otherwise affirmed.

As the People concede, the court incorrectly sentenced defendant as a second felony offender based on a conviction that occurred after defendant committed the present crimes (see Penal Law § 70.06 [1] [b] [ii]). However, the court lawfully imposed consecutive sentences as a result of defendant’s violation of his plea agreement. Concur — Gonzalez, P.J., Tom, Catterson, Renwick and Richter, JJ.