Opinion
February 2, 2007.
Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered June 20, 2005. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree and aggravated criminal contempt.
Present Scudder, P.J., Martoche, Smith, Peradotto and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by directing that the sentence of imprisonment imposed for attempted assault in the second degree and aggravated criminal contempt shall be a condition of and run concurrently with the sentence of probation and as modified the judgment is affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the second degree (Penal Law §§ 110.00, 120.05) and aggravated criminal contempt (§ 215.52). As the People correctly concede, County Court erred in sentencing defendant to identical sentences on each count, consisting of a five-year term of probation, to run consecutively to a six-month term of imprisonment. Pursuant to Penal Law § 60.01 (2) (d) and § 65.00 (3) (a) (i), the court should have imposed a sentence of imprisonment on each count as a condition of and to run concurrently with the sentence of probation ( see People v Ladd, 224 AD2d 881, 883, affd 89 NY2d 893; People v Loughlin, 154 AD2d 552, 553, affd 76 NY2d 804). We therefore modify the judgment accordingly.