People v. Walters

Appellate Division of the Supreme Court of New York

People v. Walters

91 A.D.2d 843, 458 N.Y.S.2d 400, 1982 N.Y. App. Div. LEXIS 19753

Appellate Division of the Supreme Court of the State of New York·Decided December 17, 1982·Published·Cited by 3 cases

Opinion

— Judgment unanimously affirmed. Memorandum: Defendant’s sole argument on appeal is that the court, which sentenced her to one and one-third to four years for attempted criminal possession of a forged instrument following her violation of the probation to which she had been originally sentenced on that charge, should have reduced her sentence by the amount of jail time served with respect to that charge prior to probation (see Penal Law, § 70.30, subd 3). The reduction she seeks is based on a credit to be applied in satisfaction of the sentence, not on any claimed impropriety in the sentence itself, and thus is reviewable by CPLR article 78 proceeding, not by appeal from the judgment (see People v Nyemchek, 67 AD2d 735; People v Pugh, 51 AD2d 1047; see, also, Matter of Kalamis v Smith, 42 NY2d 191). (Appeal from judgment of Orleans County Court, Miles, J. — violation of probation.) Present — Simons J. P., Hancock, Jr., Callahan, Doerr and Moule, JJ.

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— Judgment unanimously affirmed. Memorandum: Defendant’s sole argument on appeal is that the court, which sentenced her to one and one-third to four years for attempted criminal possession of a forged instrument following her violation of the probation to which she had been originally sentenced on that charge, should have reduced her sentence by the amount of jail time served with respect to that charge prior to probation (see Penal Law, § 70.30, subd 3). The reduction she seeks is based on a credit to be applied in satisfaction of the sentence, not on any claimed impropriety in the sentence itself, and thus is reviewable by CPLR article 78 proceeding, not by appeal from the judgment (see People v Nyemchek, 67 AD2d 735; People v Pugh, 51 AD2d 1047; see, also, Matter of Kalamis v Smith, 42 NY2d 191). (Appeal from judgment of Orleans County Court, Miles, J. — violation of probation.) Present — Simons J. P., Hancock, Jr., Callahan, Doerr and Moule, JJ.

People v. Walters, 91 A.D.2d 843, 458 N.Y.S.2d 400, 1982 N.Y. App. Div. LEXIS 19753 (N.Y. Ct. App. 1982).

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Opinion

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