People v. Pagan

226 A.D.2d 293, 642 N.Y.S.2d 503, 1996 N.Y. App. Div. LEXIS 4615

Opinion

—Judgment, Supreme Court, New York County (Herbert Adlerberg, J.), rendered September 14, 1995, convicting defendant, upon his plea of guilty, of violating probation, and resentencing him to a term of 1 to 3 years to run consecutively to the sentence of l1/2 to 41/2 years imposed by another Justice for the first-degree attempted robbery conviction that underlies the violation of probation, unanimously modified, on the law, to vacate the sentence, and otherwise affirmed.

As the People concede, the court had no authority to make the sentence for the violation of probation consecutive to the sentence for the attempted robbery conviction when the latter had not yet been imposed, and thereafter, had no authority to resentence defendant to a consecutive term after the attempted robbery court had lawfully provided that the sentences were to be concurrent. Concur—Murphy, P. J., Rubin, Kupferman, Ross and Tom, JJ.