People v. Rodriguez

181 A.D.2d 515, 581 N.Y.S.2d 32, 1992 N.Y. App. Div. LEXIS 3592

Opinion

— Motion granted to the extent of recalling and vacating this Court’s unpublished decision and order (Appeal No. 43954) entered on November 19, 1991 and substituting therefor a new decision and order, decided simultaneously herewith.

Judgment of resentence, Supreme Court, New York County (George Roberts, J.), rendered January 23, 1989, resentencing defendant, upon his plea of guilty to violating probation, to an indeterminate term of 1 to 3 years, to run consecutively to a sentence imposed on April 15,1988, unanimously affirmed.

Whether the sentence for a violation of probation should run concurrent or consecutive with the sentence on the underlying crime or crimes which formed the basis for the violation rests in the sound discretion of the sentencing court (People v Chavys, 64 AD2d 962). Having been sentenced to probation on August 20, 1986, on his conviction for criminal sale of a controlled substance in the fifth degree, defendant committed two separate and unrelated felony sales of crack cocaine in December, 1987. He again received lenient treatment, and was permitted to plead guilty to two class D felonies, in exchange for the minimum, concurrent terms of 2 to 4 years on each count. While defendant asserts that he is now rehabilitated, we can not say that it represented an abuse of discretion to sentence him to additional time in prison. Concur — Murphy, P. J., Carro, Rosenberger, Wallach and Ross, JJ.