Opinion
November 17, 1986
Appeal from the County Court, Nassau County (Harrington, J.).
Ordered that the judgment is modified, on the law, by reducing the special condition of six months' incarceration to four months' incarceration. As so modified, the judgment is affirmed, and the matter is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (5).
The evidence adduced at the hearing was sufficient to support the finding that the defendant violated the terms of his probation (see, CPL 410.70; People v Bacchi, 112 A.D.2d 940). In resentencing the defendant, however, the court simply continued the defendant's original sentence of probation, which had included a special condition of 60 days' incarceration, and which had already been served by the defendant, and imposed a further special condition of six months' incarceration. Thus, the sentencing court has now added to the defendant's original sentence a condition of incarceration in excess of six months, thus rendering it illegal (see, Penal Law § 60.01 [d]; People v Jones, 72 A.D.2d 779). Therefore, we have reduced the further special condition of incarceration to a term of four months in order that the total period of incarceration will not exceed six months. Brown, J.P., Rubin, Lawrence and Kooper, JJ., concur.