Opinion
January 23, 1981
Appeal from the Erie Supreme Court.
Present — Dillon, P.J., Cardamone, Hancock, Jr., Callahan and Schnepp, JJ.
Judgment insofar as it imposes sentence unanimously modified, on the law, and, as modified, affirmed, in accordance with the following memorandum: Defendant was convicted, upon a plea of guilty, to attempted escape in the second degree (Penal Law, § 110.00, 205.10 Penal) and promoting prison contraband in the second degree (Penal Law, § 205.20). He was sentenced to a one-year term of imprisonment on the attempted escape charge and a six-month term on the contraband charge, to be served consecutively. While the offenses were not committed through a single act or omission, and one offense does not constitute a material element of the other (Penal Law, § 70.25, subd 2), they did arise from a single incident. Therefore, imposition of consecutive sentences aggregating more than one year was improper (Penal Law, § 70.25, subd 3). Accordingly, we modify the sentence on the attempted escape charge by reducing it to a definite term of six months which, when added to the six-month sentence on the contraband charge, will result in aggregate terms of one year.