23 A.D.2d 892 | N.Y. App. Div. | 1965
On July 9, 1964 this court affirmed a judgment of the former County Court, Kings County, rendered October 20, 1961 after a jury trial, convicting this defendant of burglary in the third degree and petit larceny, and imposing upon him as a second felony offender a sentence of 5 to 10 years on the burglary count and suspending sentence on the petit larceny count (21 A D 2d 904). Thereafter, on March 18, 1965 the Court of Appeals reversed the order of this court, holding that on an appeal the Appellate Division has the power to suspend execution of the sentence, regardless of whether the statute prescribes a minimum term for the offense of which the defendant was convicted and regardless of whether the defendant has actually commenced serving the sentence originally imposed by the trial court. At the same time the Court of Appeals remitted the action to this court “ for such further proceedings with respect to the sentence ” as this court “ may in its discretion take ” (15 N Y 2d 914). Accordingly, we have now considered the sentence and have concluded, based on the facts previously stated by Mr. Justice Hill in his dissenting memorandum (21 A D 2d 904), that the execution of the 5-to-10-year sentence originally imposed upon this defendant should be suspended at least with respect to the unserved portion of the sentence The judgment is modified on the law and the facts by suspending execution of so much of the sentence on the burglary count as still remains to be served. As so modified, the judgment is affirmed. The defendant should be released promptly from custody. Beldock, P. J., Christ, Brennan and Hill, JJ., concur. (Republished, see 23 A D 2d 886.)
