Opinion
September 13, 1990
Appeal from the County Court of Sullivan County (Traficanti, Jr., J.).
The only issue before this court is whether County Court properly sentenced defendant to continued probation for violation of probation. Defendant pleaded guilty to driving while intoxicated as a felony, unlicensed operation of a motor vehicle as a felony, and violation of an earlier probation; he was sentenced to one year of imprisonment on each felony conviction, to be served concurrently. The court also sentenced him to continued probation for the violation of probation conviction, but provided that the probation be tolled during his incarceration on the two felony charges and then to continue thereafter. Defendant claims that pursuant to Penal Law § 65.00 he may not be sentenced to probation if he also receives a sentence of more than six months' incarceration. We agree.
Defendant may not receive at the same sentencing a term of five years' probation on one conviction and more than six months of incarceration on another conviction (see, People v. Jackson, 144 A.D.2d 1031; People v. Curkendall, 141 A.D.2d 891; People v McIntyre, 135 A.D.2d 920). Thus, County Court had no power to sentence him to continued probation on the violation of probation charge (see, People v. McIntyre, supra, at 921). The sentence of probation must therefore be vacated.
Judgment modified, on the law, by vacating so much of the sentence as continued defendant on probation, and, as so modified, affirmed. Kane, J.P., Casey, Weiss, Mikoll and Yesawich, Jr., JJ., concur.