Opinion
12734
Decided and Entered: June 27, 2002.
Appeal from a judgment of the County Court of Sullivan County (La Buda, J.), rendered December 20, 2000, which revoked defendant's probation and imposed a sentence of imprisonment.
Kevin Colwell, Albany, for appellant.
Stephen F. Lungen, District Attorney, Monticello (Bonnie M. Mitzner of counsel), for respondent.
Before: Cardona, P.J., Mercure, Peters, Carpinello and, Lahtinen, JJ.
MEMORANDUM AND ORDER
Defendant pleaded guilty to two separate superior court informations which each charged him with driving while ability impaired and aggravated unlicenced operation of a motor vehicle. His sentence for each superior court information aggregated six months in jail and five years' probation, such sentences to run concurrently. Thereafter, defendant admitted to violating the terms of probation and he was resentenced to consecutive terms of six months in jail and five years' probation. Defendant then violated the terms of probation on two subsequent occasions for which probation was revoked and he was resentenced to consecutive prison terms of 1 to 4 years. Defendant now appeals contending that the sentences imposed for violating probation were illegal. We agree.
As conceded by the People, the sentence imposed during the first resentencing, a total of 12 months of jail time plus a period of probation, was illegal (see, Penal Law § 60.01 [d]; § 65.15 [1]; see also, People v. Sawinski, 294 A.D.2d 667, 742 N.Y.S.2d 690). Inasmuch as the subsequent probation violations were predicated upon defendant's breach of the terms of this unauthorized sentence, the prison sentences imposed therefor should be vacated (see, People v. Sibley, 81 N.Y.2d 870).
Cardona, P.J., Mercure, Peters and Lahtinen, JJ., concur.
ORDERED that the judgment is modified, on the law, by reversing so much thereof as imposed a sentence of imprisonment on defendant; said sentence vacated and matter remitted to the County Court of Sullivan County for resentencing; and, as so modified, affirmed.