Opinion
January 10, 1983
Appeal by defendant, as limited by his motion, from two sentences of the Supreme Court, Queens County (Leahy, J.), both imposed November 8, 1979, upon his conviction of attempted assault in the second degree under Indictment No. 618/79 and assault in the first degree under Indictment No. 767/79, upon his pleas of guilty, the sentence for the former crime being a one-year term of imprisonment to be served consecutively to an indeterminate term of two to six years' imprisonment imposed for the latter. Sentences modified, on the law, by (1) deleting the provision in the sentence imposed on Indictment No. 618/79 that it is to be served consecutively to the sentence imposed on Indictment No. 767/79 and (2) inserting a provision in each sentence under review that such sentences are to be served concurrently. As so modified, sentences affirmed. Section 70.35 Penal of the Penal Law provides in pertinent part that "[t]he service of an indeterminate term of imprisonment shall satisfy any definite sentence of imprisonment imposed on a person for an offense committed prior to the time the indeterminate sentence was imposed". As the offense which formed the basis for the one-year determinate sentence occurred prior to the imposition of the indeterminate sentence for a subsequent unrelated offense, the one-year definite sentence should not have been imposed to run consecutively to the indeterminate prison term (see People v Delgado, 88 A.D.2d 981; People v Miller, 55 A.D.2d 596; People v Lewis, 49 A.D.2d 952; cf. Matter of Whittaker v Smith, 51 A.D.2d 858, app dsmd 41 N.Y.2d 943). Accordingly, the sentences must be modified so as to provide that they shall run concurrently with each other. We have considered defendant's remaining contention and find it to be without merit. Damiani, J.P., Gibbons, Brown and Boyers, JJ., concur.