People v. Robert A.

Appellate Division of the Supreme Court of New York

People v. Robert A.

17 A.D.3d 379, 792 N.Y.S.2d 582, 2005 N.Y. App. Div. LEXIS 3573

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 4, 2005

StatusPublished

Cited by1 cases

This text of 17 A.D.3d 379 (People v. Robert A.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Robert A., 17 A.D.3d 379, 792 N.Y.S.2d 582, 2005 N.Y. App. Div. LEXIS 3573 (N.Y. Ct. App. 2005).

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Opinion

Appeal by the People from an order of the County Court, Orange County (Berry, J.), dated December 10, 2003, denying their motion pursuant to CPL article 440 to set aside the probationary portion of the defendant’s sentence of five years and to resentence him to a period of 10 years’ probation.

Ordered that the order is reversed, on the law, the motion is granted, the portion of the defendant’s sentence sentencing him to a term of five years’ probation is vacated, and the matter is remitted to the County Court, Orange County, for resentencing.

The defendant was convicted, as a youthful offender, of attempted sexual abuse in the first degree (Penal Law § 130.65) which is a “sexual assault” as defined in Penal Law § 65.00 (3) (d). “[T]he mandatory term of probation for a youthful offender who pleads guilty or is found guilty of a sexual assault is 10 years, not five years” (People v Torrez, 5 AD3d 405, 406 [2004]; see People v Gray, 2 AD3d 275 [2003]; People v Andrew W., 189 Misc 2d 479 [2001]). Accordingly, the portion of the defendant’s sentence sentencing him to a term of five years’ probation was illegal and should have been set aside (see CPL 440.40 [1]). Cozier, J.P., Ritter, Spolzino and Skelos, JJ., concur.

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Appeal by the People from an order of the County Court, Orange County (Berry, J.), dated December 10, 2003, denying their motion pursuant to CPL article 440 to set aside the probationary portion of the defendant’s sentence of five years and to resentence him to a period of 10 years’ probation.

Ordered that the order is reversed, on the law, the motion is granted, the portion of the defendant’s sentence sentencing him to a term of five years’ probation is vacated, and the matter is remitted to the County Court, Orange County, for resentencing.

The defendant was convicted, as a youthful offender, of attempted sexual abuse in the first degree (Penal Law § 130.65) which is a “sexual assault” as defined in Penal Law § 65.00 (3) (d). “[T]he mandatory term of probation for a youthful offender who pleads guilty or is found guilty of a sexual assault is 10 years, not five years” (People v Torrez, 5 AD3d 405, 406 [2004]; see People v Gray, 2 AD3d 275 [2003]; People v Andrew W., 189 Misc 2d 479 [2001]). Accordingly, the portion of the defendant’s sentence sentencing him to a term of five years’ probation was illegal and should have been set aside (see CPL 440.40 [1]). Cozier, J.P., Ritter, Spolzino and Skelos, JJ., concur.

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Bluebook (online)

17 A.D.3d 379, 792 N.Y.S.2d 582, 2005 N.Y. App. Div. LEXIS 3573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-robert-a-nyappdiv-2005.

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