People v. Piwowar

101 A.D.2d 686, 476 N.Y.S.2d 34, 1984 N.Y. App. Div. LEXIS 18229

Opinion

Judgment unanimously affirmed. Memorandum: The record establishes that, at the time of his escape, defendant was in custody as a result of an authorized arrest based on probable cause (Penal Law, § 205.00, subd 2; § 205.05; cf. People v Tedesche, 3 AD2d 220). Additionally, although the sentencing court imposed a term of 30 days’ imprisonment and three years’ probation without specifying whether the sentences are consecutive or concurrent, section 60.01 (subd 2, par [d]) of the Penal Law provides that when a sentence is imposed along with a term of probation “[t]he sentence of imprisonment shall be a condition of and run concurrently with the sentence of probation”. Thus the sentence is made concurrent by operation of law and is not excessive. (Appeal from judgment of Erie County Court, McCarthy, J. — escape, third degree.) Present — Hancock, Jr., J. P., Denman, Boomer, O’Donnell and Schnepp, JJ.