People v. Roseboom

Appeal from a judgment of the County Court of Otsego County (Mogavero, Jr., J.), rendered February 26, 1990, which revoked defendant’s probation and imposed a sentence of imprisonment.

Defendant’s admitted violations of the terms and conditions of his probation included a violation of Agriculture and Markets Law § 353 involving the torturing of animals, failure to appear for scheduled evaluations for substance abuse and for incarceration on a designated weekend. Under these circum*785stances, County Court did not abuse its discretion in resentencing defendant to a term of imprisonment of IV2 to 4V2 years on his conviction for burglary in the third degree. The sentence was authorized by statute and was less than the maximum that could have been imposed (see, Penal Law § 70.00 [2], [3]; People v Nazarian, 150 AD2d 923, lv denied 74 NY2d 744). However, the lA-to-ÍA-year sentence imposed on the conviction for criminal mischief in the third degree, a class E felony, was beyond the scope of imprisonment provided by statute and was therefore illegal (see, Penal Law § 70.00 [2], [3]). Nevertheless, since the sentence imposed for this crime is concurrent with the burglary conviction, there is no reason to reduce the sentence below a term of IV3 to 4 years, the most severe sentence permitted (see, People v Johnson, 140 AD2d 257, lv denied 72 NY2d 920; People v Lanier, 114 AD2d 339, lv denied 67 NY2d 653).

Judgment modified, on the law, by reducing the sentence for the conviction of the crime of criminal mischief in the third degree to a term of imprisonment of 1XA to 4 years, and, as so modified, affirmed. Kane, J. P., Casey, Levine, Mercure and Harvey, JJ., concur.