27 A.D.2d 549 | N.Y. App. Div. | 1966
Judgment of the Supreme Court, Queens County, rendered March 30, 1965, modified, on the law and the facts, by vacating the sentence. As so modified, judgment affirmed and appellant remanded to the trial court for resentenee. We are of the opinion that appellant received a fair trial, was properly convicted and received a legal sentence. The sentence minutes, however, reveal that the court misconstrued its power to determine upon which count of the indictment it could sentence. Under section 2188 of the Penal Law, the court in this case could have suspended sentence on the more serious counts of the indictment and sentenced appellant on the lesser count if it were so inclined. Because of the peculiar nature of this crime and the remoteness in time of the prior felony, we are remanding the matter for resentence so that the trial court may exercise its discretion in the first instance in determining what punishment is warranted. Brennan, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.
