People v. Penna

Jan 22, 2008
Versions:47 A.D.3d 844
849 N.Y.S.2d 161

Ordered that the judgment rendered under Superior Court information No. 2496-05 is affirmed; and it is further,

Ordered that the judgment rendered under indictment No. 1665-05 is modified, on the law, by vacating the sentences imposed upon the convictions of both counts of criminal mischief in the third degree; as so modified, the judgment rendered under indictment No. 1665-05 is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for resentencing on those counts.

The People sustained their burden of proving, beyond a reasonable doubt, that the defendant was previously convicted of the felony upon which his adjudication as a second felony offender was based (see CPL 400.21; People v Myron, 28 AD3d 681, 684 [2006], cert denied — US —, 127 S Ct 1919 [2007]; People v Allen, 4 AD3d 479, 480 [2004]). The defendant‘s conclusory allegations were insufficient to support his contention that the prior conviction was unconstitutionally obtained (see People v Allen, 4 AD3d 479 [2004]; People v Owens, 272 AD2d 481, 482 [2000]).

However, as correctly conceded by the People, the concurrent indeterminate sentences of three to six years’ imprisonment, imposed on the defendant‘s convictions of criminal mischief in the third degree under Penal Law § 145.05, were illegal (see Penal Law § 70.06 [3] [e]). Thus, under the circumstances of this case, we remit the matter to the Supreme Court, Suffolk County, for resentencing on those convictions (see People v Reed, 2 AD3d 463 [2003]). Mastro, J.P., Santucci, Dillon and Angiolillo, JJ., concur.