Opinion
November 29, 1990
Appeal from the County Court of Otsego County (Mogavero, Jr., J.).
Defendant's admitted violations of the terms and conditions of his probation included a violation of Agriculture and Markets Law § 353 involving the torturing of animals, failure to appear for scheduled evaluations for substance abuse and for incarceration on a designated weekend. Under these circumstances, County Court did not abuse its discretion in resentencing defendant to a term of imprisonment of 1 1/2 to 4 1/2 years on his conviction for burglary in the third degree. The sentence was authorized by statute and was less than the maximum that could have been imposed (see, Penal Law § 70.00, [3]; People v. Nazarian, 150 A.D.2d 923, lv. denied 74 N.Y.2d 744). However, the 1 1/2-to-4 1/2-year sentence imposed on the conviction for criminal mischief in the third degree, a class E felony, was beyond the scope of imprisonment provided by statute and was therefore illegal (see, Penal Law § 70.00, [3]). Nevertheless, since the sentence imposed for this crime is concurrent with the burglary conviction, there is no reason to reduce the sentence below a term of 1 1/3 to 4 years, the most severe sentence permitted (see, People v. Johnson, 140 A.D.2d 257, lv. denied 72 N.Y.2d 920; People v. Lanier, 114 A.D.2d 339, lv. denied 67 N.Y.2d 653).
Judgment modified, on the law, by reducing the sentence for the conviction of the crime of criminal mischief in the third degree to a term of imprisonment of 1 1/3 to 4 years, and, as so modified, affirmed. Kane, J.P., Casey, Levine, Mercure and Harvey, JJ., concur.