Opinion
January 14, 1971
Appeal from the Wayne County Court.
Present — Goldman, P.J., Del Vecchio, Witmer, Gabrielli and Henry, JJ.
Judgment unanimously modified on the law and facts in accordance with the memorandum herein, and as so modified affirmed. Memorandum: Defendant pleaded guilty to two counts of a four count indictment and the remaining two counts were dismissed. He was sentenced to 2 1/2 to 5 years on the count of burglary, third degree, and to 5 to 10 years on the count of grand larceny, first degree. The latter term was suspended and defendant was placed on probation for 10 years. The issue on this appeal is whether the two terms should be served consecutively, that is, whether the 10-year probation should commence upon the completion of the 2 1/2 to 5 year term. The trial court did not state whether the sentence imposed was to run concurrently or consecutively. There was nothing extraordinarily serious in the commission of the crimes which consisted of breaking and entering two dwellings and the Trial Judge must have so regarded the circumstances when he suspended sentence on the grand larceny count. Section 70.25 Penal of the Penal Law sets forth the rules regarding sentencing to concurrent and consecutive terms and provides, in part, that "If the court does not specify the manner in which a sentence imposed by it is to run, the sentence shall run as follows: (a) An indeterminate sentence shall run concurrently with all other terms; and (b) A definite sentence shall run concurrently with any sentence imposed at the same time and shall be consecutive to any other term." The District Attorney urges that section 70.25 is limited to those situations where the separate sentences imposed are both sentences of imprisonment rather than one of imprisonment and the other for a probationary period. We are inclined to disagree with this contention but do not need to reach this determination, for we hold that, in the interest of justice, the two terms should run concurrently. Our position is well stated in People v. Callahan ( 30 A.D.2d 691) in the following quotation: "The Criminal [County] Term, in pronouncing judgment, did not state that the sentence imposed was to run concurrently * * * In our opinion the imposition of consecutive, rather than concurrent, sentences was excessive (see Penal Law, § 70.25)." The conviction should be modified so that the prison term and the probation term will run concurrently.