People v. Sutton

Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: As the People correctly concede, County Court erred in directing that the definite sentence of incarceration imposed on the violation of probation be consecutive to the indeterminate terms of incarceration imposed on the convictions of scheme to defraud in the first degree (Penal Law § 190.65 [1] [b]) and criminal possession of a forged instrument in the second degree (Penal Law § 170.25). The offense underlying the definite sentence was committed prior to the date on which the indeterminate sentences were imposed, and thus the sentences must run concurrently (see, Penal Law § 70.35; People v Graham, 255 AD2d 932, lv denied 93 NY2d 873). We therefore modify the judgment by providing that the definite sentence of incarceration shall run concurrently with the indeterminate sentences. (Appeal from Judgment of Erie County Court, DiTullio, J. — Violation of Probation.) Present — Green, J. P., Hayes, Hurl-butt, Burns and Lawton, JJ.