People v. Leabo

196 A.D.2d 910, 602 N.Y.S.2d 223, 1993 N.Y. App. Div. LEXIS 8681

Opinion

Appeal from a judgment of the County Court of Franklin County (Main, Jr., J.), rendered March 2, 1992, convicting defendant upon his plea of guilty of the crimes of driving while intoxicated, as a felony, and criminal mischief in the fourth degree.

As a part of a negotiated plea agreement, defendant was sentenced on his conviction of driving while intoxicated, as a felony, to a term of imprisonment of 1 to 3 years and on his conviction of criminal mischief in the fourth degree to a definite sentence of one year in jail, with the sentences to be served consecutively. Defendant argues on appeal that the sentences must be served concurrently pursuant to Penal Law § 70.35. We agree. Penal Law § 70.35 states that, except in circumstances not relevant here, "service of an indeterminate sentence of imprisonment shall satisfy any definite sentence of imprisonment imposed on a person for an offense committed prior to the time the indeterminate sentence was imposed”. Given that this is the case here, defendant’s sentence should be modified accordingly (see, People v Fisher, 97 AD2d 651, 653).

Weiss, P. J., Mikoll, Mercure and Mahoney, JJ., concur. Ordered that the judgment is modified, on the law, by directing that the definite sentence and the indeterminate sentence are to be served concurrently, and, as so modified, affirmed.