People v. Moskowitz

• Decision Date: 09 July 1984
• Parties: The PEOPLE, etc., Respondent, v. Arnold MOSKOWITZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 422

477 N.Y.S.2d 422

103 A.D.2d 784

The PEOPLE, etc., Respondent, v. Arnold MOSKOWITZ, Appellant.

Supreme Court, Appellate Division Second Department.

July 9, 1984.

Bruce Fenton, Dobbs Ferry, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Peter A. Weinstein, Asst. Dist. Attys., Brooklyn, and Darrell Fields of counsel), for respondent.

Before LAZER, J.P., and O'CONNOR, WEINSTEIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant, as limited by his brief, from a sentence of the Supreme Court, Kings County, imposed October 4, 1982, upon his conviction of attempted criminal sale of a controlled substance in the fifth degree, upon his plea of guilty, the sentence being an indeterminate term of imprisonment of one and one-half to three years, as a prior felony offender.

Sentence affirmed.

On April 29, 1982, defendant pleaded guilty to the crime of attempted criminal sale of a controlled substance in the fifth degree in satisfaction of a four-count indictment. Prior to sentencing, the People filed a predicate felony statement based upon defendant's prior Federal conviction, rendered May 10, 1979, of the crime of bank robbery in the first degree. Defendant had been sentenced to three years probation for the Federal offense pursuant to the Federal Youth Corrections Act (see U.S.Code, tit. 18, § 5010, subd. ). In view of his plea of guilty in the instant case, defendant's probation was extended until May 9, 1983.

Until a "youth offender" under the Federal Youthful Offender Act is unconditionally discharged before the expiration of the maximum sentence imposed or the period of probation theretofore fixed by the court, the offender stands convicted of a crime (People v. Celli, 105 Misc.2d 1005, 1010, 430 N.Y.S.2d 949, affd. 91 A.D.2d 1071, 458 N.Y.S.2d 896; cf. United States v. Fryer, 545 F.2d 11 (6 Cir.1976); People v. Garcia, 93 Misc.2d 667, 402 N.Y.S.2d 164; cf. People v. Rivera, App.Div. 474 N.Y.S.2d 573 ). In the instant case, there was no unconditional discharge under the Federal Youthful Offender Act prior to defendant's commission of the instant offense. Nor was defendant issued a certificate vacating the conviction (U.S.Code, tit. 18, § 5021, subd. ). Therefore defendant was properly sentenced as a prior felony offender (see People v. Duffy, 83 A.D.2d 563, 441 N.Y.S.2d 15). Contrary to defendant's assertion, this is not a situation where the sentencing court was impermissibly attempting to...