People v. Richard H.

77 A.D.2d 604, 431 N.Y.S.2d 990, 1980 N.Y. App. Div. LEXIS 12322

Opinion

Motion by defendant for reargument of his appeal from a judgment of the County Court, Nassau County, rendered June 7, 1979, the appeal having been decided by order of this court dated May 5, 1980. Motion granted and upon reargument this court’s decision and order, both dated May 5, 1980, are recalled and vacated and the following substituted decision is rendered. Appeal by defendant from a judgment of the County Court, Nassau County, rendered June 7, 1979, adjudicating him to be a youthful offender, upon a plea of guilty, and imposing sentence. Judgment modified, on the law, by vacating the sentence. As so modified, judgment affirmed and case remitted to the County Court for the imposition of a new sentence. The definite one-year term of imprisonment imposed by the County Court was unauthorized (see Penal Law, § 60.01, subd 3, par [a]; § 60.02, former subd [a]; § 70.00, subds 2, 3, 4; cf. People v Donald Joseph P., 55 AD2d 661; People v James M, 47 AD2d 907; distinguish People v James S., 65 AD2d 823). Gibbons, J. P., Gulotta, Margett and O’Connor, JJ., concur.