People v. Richard MM.

97 A.D.2d 885, 470 N.Y.S.2d 704, 1983 N.Y. App. Div. LEXIS 20674

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1983
• Status: Published

Opinion

Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered March 12, 1982, which sentenced defendant upon his adjudication as a youthful offender. Defendant contends that the sentence imposed of up to three years in prison is one not authorized by law for a conviction of a class E felony (attempted burglary in the third degree), that an updated presentence report should be furnished the court or, in the alternative, that the sentence should be reduced in the interest of justice to a term of probation. The prosecutor with commendable candor agrees that the sentencing court should have fixed a minimum as well as a maximum sentence. Section 70.00 (subd 3, par [c]) of the Penal Law, which allowed the Parole Board to set the minimum under certain circumstances, has been repealed (L 1980, ch 873, § 2, eff Sept. 1, 1980), and the sentencing court must now set the minimum in all cases. The sentence imposed should therefore be vacated and the matter remitted for the purposes of resentencing in conformity with section 70.00 of the Penal Law. An updated presentence report should be furnished the sentencing court at that time (see People v Cruz, 89 AD2d 569; People v Hallaby, 77 AD2d 717). We do not reach the issue of excessiveness of sentence. Judgment modified, on the law, by Vacating the sentence, matter remitted to the County Court of Tompkins County for resentencing in accordance herewith, and, as so modified, affirmed. Sweeney, J. P., Kane, Main, Mikoll and Levine, JJ., concur.