People v. Thompson

55 A.D.2d 528, 389 N.Y.S.2d 104, 1976 N.Y. App. Div. LEXIS 15172

Opinion

Judgment of the Supreme Court, New York County, rendered on May 31, 1974 convicting defendant, upon his pleas of guilty, of robbery in the first degree and assault in the second degree, and sentencing him as a second felony offender to concurrent terms of 5 to 10 years for the robbery conviction and 3 to 7 years on the assault conviction, unanimously modified, on the law, to the extent of resentencing defendant on his plea to assault in the second degree to a term of 216 to 7 years, and otherwise affirmed. The crime of assault to which the defendant pleaded occurred on May 27, 1973. Section 70.06 of the Penal Law, the second felony offender statute, under which he was sentenced, became effective September 1, 1973. It may not be applied to any offense which occurred prior to that date. The defendant should have been sentenced under section 70.00 (subd 3, par [b]) of the Penal Law. It is unnecessary, however, to remand for sentence, as the reasons for imposing a minimum sentence under said section 70.00 (subd 3, par [b]) of the Penal Law are apparent from the record (People v Estevas, 51 AD2d 900), and in any event, the defendant has already served more than 216 years. In view of defendant’s prior criminal record, the sentence on his robbery conviction was not excessive. Concur—Markewich, J. P., Murphy, Birns, Capozzoli and Nunez, JJ.