People v. Callahan
244 N.Y.S.2d 766
N.Y. App. Div.
1963
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Appeal by defendant from two judgments of the former Court of Special Sessions of the City-of New York, County of Queens, rendered May 23, 1962 after a nonjury trial, convicting him of malicious mischief and assault third degree; and, on each conviction, sentencing him to an indeterminate term in the New York City Reformatory, with a recommendation that he serve six months, and directing that the two sentences shall be served concurrently. *890.Judgment convicting defendant of malicious mischief reversed on the law and the facts; information dismissed; and defendant discharged (with respect to the charge in such information). There was no evidence that the injury to the property was willful, as required by the statute (Penal Law, § 1483; cf. People v. Broady, 5 N Y 2d 500, 506-507). Judgment convicting defendant of assault third degree, modified on the law by vacating the sentence; and defendant remanded to the trial court for resentence pursuant to law and not inconsistent herewith. As so modified, such judgment is affirmed. No questions of fact were considered incident to this modification. The trial court having imposed an indefinite term, it was without authority as a matter of law to add as an incident to such sentence its recommendation that defendant shall remain in prison for any definite period of time; such a recommendation by the trial court is nugatory (People v. Tower, 308 N. Y. 123, 125). In this case, since the probation report is not before us, we express no opinion as to the kind or the duration of the term which would be appropriate upon the defendant’s resentence. Beldoek, P. J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.