People v. John P., 294 A.D.2d 951

—Appeal from an adjudication of Monroe County Court (Bristol, J.), entered August 7, 2000, which restored defendant to probation, terminated the sentence of probation, and sentenced defendant to a three-year conditional discharge.

It is hereby ordered that the adjudication so appealed from be and the same hereby is unanimously modified on the law by vacating that portion sentencing defendant to a three-year conditional discharge and as modified the adjudication is affirmed.

Memorandum: County Court erred in sentencing defendant to a conditional discharge after terminating his sentence of probation. Once a sentence of probation is “terminated” (CPL 410.90 [1]), the sentence effectively expires and the court is without authority to impose any other sentence. Contrary to the People’s contention, preservation of this issue is not required (see People v Samms, 95 NY2d 52, 55-56; People v Letterlough, 86 NY2d 259, 263 n 1; People v Fuller, 57 NY2d 152, 156), nor can defendant be deemed to have waived the right to be sentenced in accordance with the law (see People v Taylor, 197 AD2d 858, 859). Thus, we modify the adjudication by vacating that portion sentencing defendant to a three-year conditional discharge. Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Kehoe, JJ.

Case Details

Case Name: People v. John P.

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: May 3, 2002

Citations: 294 A.D.2d 951; 741 N.Y.S.2d 785; 2002 N.Y. App. Div. LEXIS 4560

Court Abbreviation: N.Y. App. Div.