People v Irizarry

People v Irizarry 2012 NY Slip Op 02562 Decided on April 5, 2012 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 April 5, 2012
Gonzalez, P.J., Tom, Catterson, Renwick, Richter, JJ.
7268 6431/07

[*1]The People of the State of New York, Respondent,

v

Rafael Irizarry, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Amy Donner
of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser
of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered July 1, 2010, convicting defendant, upon his plea of guilty, of auto stripping in the second degree and four counts of grand larceny in the fourth degree, and sentencing him, as a second felony offender, to an aggregate term of four to eight years, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and the sentence and remanding for resentencing, and otherwise affirmed.

As the People concede, the court incorrectly sentenced defendant as a second felony offender based on a conviction that occurred after defendant committed the present crimes (see Penal Law § 70.06[1][b][ii]). However, the court lawfully imposed consecutive sentences as a result of defendant's violation of his plea agreement.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 5, 2012

CLERK