People v. Ware

29 A.D.2d 557, 285 N.Y.S.2d 321, 1967 N.Y. App. Div. LEXIS 2724

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1967
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 9, 1966 upon resentence, convicting him of assault in the third degree, upon a plea of guilty, and imposing sentence. Sentence had orginally been imposed on July 20,1964, but execution thereof had been suspended, with defendant placed on probation. The judgment of September 9,1966 vacated the suspension of execution upon a finding that defendant had violated his probation by having intercourse with a 17-year-old girl. Appeal dismissed. The propriety of the revocation of probation and subsequent imprisonment can be tested only by a habeas corpus proceeding and not by appeal from the 1966 judgment (People v. Gregory L. [Anonymous], 28 A D 2d 68). In any event, if we were to consider the merits, we would affirm the judgment. Implicit in every grant of probation is a requirement that defendant not commit another crime. Revocation of probation was proper in this ease because defendant admitted that he committed the crime of statutory rape during the period of probation. Beldock, P. J., Christ, Rabin, Benjamin and Munder, JJ., concur.