People v. Orr
| Decision Date | 07 March 1988 |
| Citation | 138 A.D.2d 416,525 N.Y.S.2d 700 |
| Parties | The PEOPLE, etc., Respondent, v. Allison ORR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joseph F. DeFelice, Ozone Park, for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Mark Osnowitz, of counsel), for respondent.
Before MOLLEN, P.J., and MANGANO, THOMPSON and SPATT, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant, as limited by her motion, from a sentence of the Supreme Court, Queens County (Cohen, J.), imposed September 22, 1987, upon her conviction of attempted robbery in the second degree (two counts), and resisting arrest, after a jury trial, the sentence being two concurrent terms of one to three years' imprisonment, to run concurrent to a definite sentence of one year imprisonment.
ORDERED that the sentence is modified, on the law, and as a matter of discretion in the interest of justice, by reducing the term of one year imprisonment upon the defendant's conviction of resisting arrest to a term of six months imprisonment and by reducing the two concurrent terms of one to three years imprisonment to two concurrent terms of six months imprisonment to run concurrently with and as a condition of two concurrent terms of five years probation; as so modified, the sentence is affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 410.10.
The crimes of which the defendant stands convicted were committed on February 16, 1986. As of November 1, 1984, the law was changed establishing six months incarceration as the maximum jail sentence for class A misdemeanors, except for certain designated crimes (Penal Law § 70.15-[1] ). Resisting arrest is a class A misdemeanor and was not included among the designated exceptions (see, Penal Law § 70.15-[1][b] ). Therefore, the one-year term of imprisonment imposed for that crime in this case was illegal (see, People v. Higgins, 108 A.D.2d 642, 485 N.Y.S.2d 283). Accordingly, the defendant's sentence on the conviction for resisting arrest is reduced to a term of six months' imprisonment.
The remaining terms of imprisonment are modified, in the interest of justice, by reducing them to six months' imprisonment to run concurrent with and as a condition of two concurrent terms of five years' probation. The defendant, a 27-year-old woman with a young child, has no prior convictions other than one conviction for disorderly conduct, a violation. Her involvement in...
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...or other counselling programs (see, e.g., People v. Andrea FF., 185 A.D.2d 557, 586 N.Y.S.2d 423; People v. Chen, supra; People v. Orr, 138 A.D.2d 416, 525 N.Y.S.2d 700). All of those cases, however, represent an alteration of the sentence premised on changes in the individual's life post p......
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...concurrently. We are satisfied that the reduced sentence is adequate to achieve the legitimate goals of sentencing (see, People v. Orr, 138 A.D.2d 416, 525 N.Y.S.2d 700). The defendant's claim of ineffective assistance of counsel is based on matters dehors the record and may not be raised o......
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