People v. Maybusher

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered August 26, 1964, upon resentence, convicting, him of robbery in the third degree, upon his plea of guilty, and resentencing him. Judgment modified on the law and the facts and in the exercise of discretion, so as to provide that defendant be committed “to the department reception center [at Elmira Reformatory],” pursuant to section 61 of the Correction Law, as of July 27, 1964. As so modified, judgment affirmed. Defendant was originally sentenced on July 27, 1964 to a term of net less than 5 nor more than 10 years in State Prison. It was subsequently ascertained that he was not yet 21 years of age at the time of sentence. When resentenced on August 26, 1964, he had reached the age of 21 years. The error in the original sentence and the delay in resentencing should not deprive him of the treatment the law required that he receive had he been sentenced correctly on July 27, 1964. The resentence should have been made nwnc pro time as of July 27, 1964.