People v. Bernstein

• Decision Date: 13 July 1990
• Docket Number: No. 1,1
• Citation: 163 A.D.2d 842,559 N.Y.S.2d 71
• Parties: PEOPLE of the State of New York, Respondent, v. Adam H. BERNSTEIN, Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 71

559 N.Y.S.2d 71

163 A.D.2d 842

PEOPLE of the State of New York, Respondent, v.Adam H. BERNSTEIN, Appellant. Appeal No. 1.

Supreme Court, Appellate Division Fourth Department.

July 13, 1990.

Edward J. Nowak by Roger Brazill, Rochester, for appellant.

Howard R. Relin by Robert Mastrocola, Rochester, for respondent.

Before DILLON, P.J., and CALLAHAN, DOERR, PINE and LAWTON, JJ.

MEMORANDUM:

Defendant pled guilty to one count each of grand larceny in the third degree (Penal Law § 155.35) and driving while intoxicated as a misdemeanor (Vehicle and Traffic Law § 1192[3], and was sentenced to five years' and three years' probation, respectively.He was ordered to spend the first 120 days of the felony probation sentence in the Monroe County Jail.The court also revoked defendant's driver's license, ordered him to make restitution in the amount of $39,089, and imposed a surcharge of $1,954.45.

Defendant was subsequently found to have violated the conditions of probation after he was seen driving an automobile at various locations in the City of Rochester.He was resentenced to concurrent terms of imprisonment of one to four years for the felony and one year for the misdemeanor.While incarcerated, defendant moved pursuant to CPL article 440 to vacate his original sentence.The motion was denied.These appeals are from the original judgment, the amended judgment and the order denying defendant's application under CPL 440.In each instance, we affirm.

It is conceded that the court erred in failing to specify the manner of performance and the date by which restitution was to have been paid in full (see, Penal Law § 65.10[2][g];see also, People v. Fuller, 57 N.Y.2d 152, 455 N.Y.S.2d 253, 441 N.E.2d 563).While ordinarily we would remit the case to allow the sentencing court to correct the error (see, People v. DeFrancesco, 136 A.D.2d 560, 523 N.Y.S.2d 555;see also, People v. Williams, 154 A.D.2d 945, 547 N.Y.S.2d 166;lv. denied75 N.Y.2d 819, 552 N.Y.S.2d 569, 551 N.E.2d 1247;People v. Bentivegna, 145 A.D.2d 899, 536 N.Y.S.2d 280;People v. West, 145 A.D.2d 980, 536 N.Y.S.2d 620;People v. Dixon, 134 A.D.2d 877, 522 N.Y.S.2d 49;People v. Minutoli, 128 A.D.2d 813, 513 N.Y.S.2d 517, lv. denied70 N.Y.2d 651, 518 N.Y.S.2d 1044, 512 N.E.2d 570), it is unnecessary to do so here.Defendant violated a valid condition of probation unrelated to restitution and, upon resentencing, was relieved of the obligation to make restitution.Thus, remittal would serve no useful purpose.Additionally, the court's failure strictly to comply with the requirement of CPL § 410.10(1), that defendant"be given a written copy of the conditions [of probation] at the time sentence is imposed", does not vitiate defendant's conviction for violating probation.Defendant was told of the conditions at the time of sentencing.While...