People v. Murray

282 A.D.2d 475, 723 N.Y.S.2d 196, 2001 N.Y. App. Div. LEXIS 3281

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 2001
• Status: Published

Opinion

—Appeal by the defendant from an amended judgment of the Supreme Court, Kings County (Kreindler, J.), rendered April 26, 2000, revoking a sentence of probation previously imposed by the same court (McBrien, J.), upon a finding that he violated a condition thereof, after a hearing, and imposing a sentence of imprisonment upon his previous adjudication as a youthful offender.

Ordered that the amended judgment is modified, on the law, by vacating the sentence imposed thereon; as so modified, the amended judgment is affirmed, and the case is remitted to the Supreme Court, Kings County, for resentencing and for further proceedings pursuant to CPL 460.50 (5).

Following a hearing, the Supreme Court found that the defendant was in violation of probation because he failed to notify his probation officer of his arrest. The defendant was arrested on February 19, 1999, for a homicide which occurred on July 24, 1997, several months before the date he was placed on probation, i.e., December 1, 1997. The Supreme Court specifically noted that in determining the defendant’s sentence for the violation of probation it considered the facts of the homicide.

The Supreme Court improperly considered the defendant’s conduct which occurred before the date he was placed on probation (see, Penal Law § 65.10; CPL 410.70; see also, People v Hudson, 270 AD2d 287). Accordingly, the matter is remitted to Supreme Court, Kings County, for resentencing.

The defendant’s remaining contention is without merit. O’Brien, J. P., Ritter, Goldstein and Smith, JJ., concur.