People v. Schweickert

Appellate Division of the Supreme Court of New York

People v. Schweickert

91 A.D.2d 1004, 457 N.Y.S.2d 868, 1983 N.Y. App. Div. LEXIS 16315

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

DecidedJanuary 10, 1983

StatusPublished

Cited by3 cases

This text of 91 A.D.2d 1004 (People v. Schweickert) 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. Schweickert, 91 A.D.2d 1004, 457 N.Y.S.2d 868, 1983 N.Y. App. Div. LEXIS 16315 (N.Y. Ct. App. 1983).

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Opinion

— Appeal by defendant, as limited by his motion, from two sentences of the Supreme Court, Queens County (Leahy, J.), both [1005]*1005imposed November 8, 1979, upon his conviction of attempted assault in the second degree under Indictment No. 618/79 and assault in the first degree under Indictment No. 767/79, upon his pleas of guilty, the sentence for the former crime being a one-year term of imprisonment to be served consecutively to an indeterminate term of two to six years’ imprisonment imposed for the latter. Sentences modified, on the law, by (1) deleting the provision in the sentence imposed on Indictment No. 618/79 that it is to be served consecutively to the sentence imposed on Indictment No. 767/79 and (2) inserting a provision in each sentence under review that such sentences are to be served concurrently. As so modified, sentences affirmed. Section 70.35 of the Penal Law provides in pertinent part that “[tlhe service of an indeterminate term of imprisonment shall satisfy any definite sentence of imprisonment imposed on a person for an offense committed prior to the time the indeterminate sentence was imposed”. As the offense which formed the basis for the one-year determinate sentence occurred prior to the imposition of the indeterminate sentence for a subsequent unrelated offense, the one-year definite sentence should not have been imposed to run consecutively to the indeterminate prison term (see People v Delgado, 88 AD2d 981; People v Miller, 55 AD2d 596; People v Lewis, 49 AD2d 952; cf. Matter of Whittaker v Smith, 51 AD2d 858, app dsmd 41 NY2d 943). Accordingly, the sentences must be modified so as to provide that they shall run concurrently with each other. We have considered defendant’s remaining contention and find it to be without merit. Damiani, J. P., Gibbons, Brown and Boyers, JJ., concur.

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— Appeal by defendant, as limited by his motion, from two sentences of the Supreme Court, Queens County (Leahy, J.), both [1005]*1005imposed November 8, 1979, upon his conviction of attempted assault in the second degree under Indictment No. 618/79 and assault in the first degree under Indictment No. 767/79, upon his pleas of guilty, the sentence for the former crime being a one-year term of imprisonment to be served consecutively to an indeterminate term of two to six years’ imprisonment imposed for the latter. Sentences modified, on the law, by (1) deleting the provision in the sentence imposed on Indictment No. 618/79 that it is to be served consecutively to the sentence imposed on Indictment No. 767/79 and (2) inserting a provision in each sentence under review that such sentences are to be served concurrently. As so modified, sentences affirmed. Section 70.35 of the Penal Law provides in pertinent part that “[tlhe service of an indeterminate term of imprisonment shall satisfy any definite sentence of imprisonment imposed on a person for an offense committed prior to the time the indeterminate sentence was imposed”. As the offense which formed the basis for the one-year determinate sentence occurred prior to the imposition of the indeterminate sentence for a subsequent unrelated offense, the one-year definite sentence should not have been imposed to run consecutively to the indeterminate prison term (see People v Delgado, 88 AD2d 981; People v Miller, 55 AD2d 596; People v Lewis, 49 AD2d 952; cf. Matter of Whittaker v Smith, 51 AD2d 858, app dsmd 41 NY2d 943). Accordingly, the sentences must be modified so as to provide that they shall run concurrently with each other. We have considered defendant’s remaining contention and find it to be without merit. Damiani, J. P., Gibbons, Brown and Boyers, JJ., concur.

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Bluebook (online)

91 A.D.2d 1004, 457 N.Y.S.2d 868, 1983 N.Y. App. Div. LEXIS 16315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-schweickert-nyappdiv-1983.

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