Opinion
KA 00-02434
May 3, 2002.
Appeal from a judgment of Monroe County Court (Bristol, J.), entered August 7, 2000, which restored defendant to probation, terminated the sentence of probation, and sentenced defendant to a three-year conditional discharge.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN K. LINDLEY OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, SCUDDER, AND KEHOE, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating that portion sentencing defendant to a three-year conditional discharge and as modified the judgment is affirmed.
Memorandum:
County Court erred in sentencing defendant to a conditional discharge after terminating his sentence of probation. Once a sentence of probation is "terminated" (CPL 410.90), the sentence effectively expires and the court is without authority to impose any other sentence. Contrary to the People's contention, preservation of this issue is not required ( see People v. Samms, 95 N.Y.2d 52, 55-56; People v. Letterlough, 86 N.Y.2d 259, 263 n 1; People v. Fuller, 57 N.Y.2d 152, 156), nor can defendant be deemed to have waived the right to be sentenced in accordance with the law ( see People v. Taylor, 197 A.D.2d 858, 859). Thus, we modify the judgment by vacating that portion sentencing defendant to a three-year conditional discharge.