People v. Martin

Appellate Division of the Supreme Court of New York

People v. Martin

42 A.D.2d 864, 346 N.Y.S.2d 855, 1973 N.Y. App. Div. LEXIS 3651

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 13, 1973

StatusPublished

This text of 42 A.D.2d 864 (People v. Martin) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Martin, 42 A.D.2d 864, 346 N.Y.S.2d 855, 1973 N.Y. App. Div. LEXIS 3651 (N.Y. Ct. App. 1973).

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Opinion

Appeal by defendant, as limited by his brief, from a sentence of the County Court, Nassau County, imposed January 17, 1973; upon a plea of guilty to attempted burglary in the third degree, and after revocation of probation previously granted, the revocation being based upon a plea of guilty of violation of the probation. The sentence committed defendant [865]*865to an indeterminate term of imprisonment not to exceed three years. Sentence affirmed. Defendant argues that his original sentence of probation was illegal since he was an addict at the time of sentencing, and accordingly, cannot now be imprisoned for violating probation, citing People v. Brian G. J. (40 A D 2d 1037). Defendant seeks to be resentenced to the Narcotic Addiction Control Commission (NACC). We find People v. Brian G. J, {supra) distinguishable because at the time of the original sentence in that case, NACC was accepting referrals and, therefore it was error for the court therein to impose a sentence of probation. At the time of the original sentencing in the case at bar, NACC was closed to the certification of new criminally convicted narcotic addicted defendants. As a result, the sentencing court could exercise various alternatives to imprisonment under section 60.10 of the Penal Law including probation (People ex rel. Bennet v. Flood, 39 A D 2d 320). Thus, the original sentence of probation was legal and upon a violation of probation a term of imprisonment was legally imposed. Hopkins, Acting P. J., Martuscello, Latham, Shapiro and Benjamin, JJ., concur.

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Appeal by defendant, as limited by his brief, from a sentence of the County Court, Nassau County, imposed January 17, 1973; upon a plea of guilty to attempted burglary in the third degree, and after revocation of probation previously granted, the revocation being based upon a plea of guilty of violation of the probation. The sentence committed defendant [865]*865to an indeterminate term of imprisonment not to exceed three years. Sentence affirmed. Defendant argues that his original sentence of probation was illegal since he was an addict at the time of sentencing, and accordingly, cannot now be imprisoned for violating probation, citing People v. Brian G. J. (40 A D 2d 1037). Defendant seeks to be resentenced to the Narcotic Addiction Control Commission (NACC). We find People v. Brian G. J, {supra) distinguishable because at the time of the original sentence in that case, NACC was accepting referrals and, therefore it was error for the court therein to impose a sentence of probation. At the time of the original sentencing in the case at bar, NACC was closed to the certification of new criminally convicted narcotic addicted defendants. As a result, the sentencing court could exercise various alternatives to imprisonment under section 60.10 of the Penal Law including probation (People ex rel. Bennet v. Flood, 39 A D 2d 320). Thus, the original sentence of probation was legal and upon a violation of probation a term of imprisonment was legally imposed. Hopkins, Acting P. J., Martuscello, Latham, Shapiro and Benjamin, JJ., concur.

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Bluebook (online)

42 A.D.2d 864, 346 N.Y.S.2d 855, 1973 N.Y. App. Div. LEXIS 3651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-martin-nyappdiv-1973.