People v. O'Brien

• Decision Date: 05 February 1993
• Docket Number: No. 1,1
• Citation: 190 A.D.2d 1097,594 N.Y.S.2d 672
• Parties: PEOPLE of the State of New York, Respondent, v. Timothy O'BRIEN, Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 672

594 N.Y.S.2d 672

190 A.D.2d 1097

PEOPLE of the State of New York, Respondent, v. Timothy O'BRIEN, Appellant. Appeal No. 1.

Supreme Court of New York, Appellate Division Fourth Department.

February 5, 1993

Edward J. Nowak by Stephen Bird, Rochester, for appellant. Howard R. Relin by Mark Pedersen, Rochester, for respondent.

Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: The People candidly concede that defendant's sentence of one year's incarceration and five years' probation for his conviction of two counts of felony driving while intoxicated was illegal (see, Penal Law §§ 60.01[2][d], 65.00; see also, People v. Curkendall, 141 A.D.2d 891, 529 N.Y.S.2d 402; People v. McIntyre, 135 A.D.2d 920, 522 N.Y.S.2d 688). Defendant's sentence is therefore modified by vacating the provision imposing probation (see, People v. Jackson, 144 A.D.2d 1031, 534 N.Y.S.2d 300). Because defendant's sentence of probation was prohibited, that sentence cannot serve as a basis for a finding of a violation of probation (see, People v. DeFrancesco, 136 A.D.2d 560, 523 N.Y.S.2d 555). (Appeal from Judgment of Supreme Court, Monroe County, Bergin, J.--Felony Driving While Intoxicated.)

GREEN, J.P., and PINE, LAWTON, FALLON and ...