People v Joseph Garcia

People v Garcia 2006 NY Slip Op 00366 [25 AD3d 620] January 17, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 22, 2006

The People of the State of New York, Respondent,
v
Joseph Garcia, Appellant.

—[*1]

Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered September 4, 2003, convicting him of attempted criminal possession of a controlled substance in the fifth degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by providing that the indeterminate sentence imposed in this case be served concurrently with a previously-imposed sentence of a determinate term of imprisonment of one year for a probation violation; as so modified, the judgment is affirmed.

In an unrelated matter, the defendant was sentenced to a determinate term of imprisonment of one year for a probation violation. That sentence was imposed and undischarged at the time the sentencing court in this case imposed an indeterminate term of imprisonment of one to three years, upon the defendant's plea of guilty to attempted criminal possession of a controlled substance in the fifth degree. The sentencing court was silent on the issue of whether the indeterminate sentence imposed herein should run consecutively or concurrently with the prior, probation violation sentence. Accordingly, by operation of law, and in light of the People's concession in this case that the two sentences "necessarily merged," the sentences must run concurrently (see People v Pitts, 75 AD2d 719 [1980]).

The defendant's remaining contentions either have been waived, or are without merit. H. Miller, J.P., Cozier, Ritter and Dillon, JJ., concur.