People v. Iyasere

People v Iyasere (2019 NY Slip Op 07529)

People v Iyasere

2019 NY Slip Op 07529

Decided on October 22, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 22, 2019
Acosta, P.J., Richter, Mazzarelli, Webber, Kern, JJ.
10141 405/16

Janet E. Sabel, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Shari R. Michels, J.), rendered December 1, 2017, convicting defendant, upon his plea of guilty, of menacing in the second degree, and sentencing him to a term of six months, with three years' probation, unanimously modified, on the law, to the extent of vacating the term of probation, and otherwise affirmed.

The People concede that defendant could not be lawfully sentenced on a misdemeanor conviction to both a term of imprisonment in excess of 60 days and a term of probation (Penal Law § 60.01[2][d]). Accordingly, we vacate the probation component of the sentence. We decline to remand for a new sentencing, as requested by the People, in light of the fact that defendant has already been incarcerated for 11 months, which is close to the maximum sentence for this offense.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 22, 2019

CLERK