People v. Guttierrez

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Linakis, J.), imposed October 13, 1987, upon his conviction of attempted criminal possession of a controlled substance in the fourth degree, upon his plea of guilty, the sentence being a term of six months’ imprisonment and five years’ probation.

Ordered that the sentence is modified, on the law, by providing that the term of imprisonment shall run concurrently with and be a condition of the term of probation; as so modified, the sentence is affirmed.

As the People concede, the sentence imposed was unauthorized and invalid since the term of imprisonment combined with the period of probation may not total more than five years upon a felony conviction (Penal Law § 60.01 [2] [d]; § 65.00 [3] [a] [i]). We have modified the sentence accordingly. Mollen, P. J., Thompson, Bracken and Lawrence, JJ., concur.