Opinion
10141 Ind. 405/16
10-22-2019
The PEOPLE of the State of New York, Respondent, v. Isaiah IYASERE, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Ryan J. Foley of counsel), for respondent.
Acosta, P.J., Richter, Mazzarelli, Webber, Kern, JJ.
Judgment, Supreme Court, Bronx County (Shari R. Michels, J.), rendered December 1, 2017, convicting defendant, upon his plea of guilty, of menacing in the second degree, and sentencing him to a term of six months, with three years' probation, unanimously modified, on the law, to the extent of vacating the term of probation, and otherwise affirmed.
The People concede that defendant could not be lawfully sentenced on a misdemeanor conviction to both a term of imprisonment in excess of 60 days and a term of probation ( Penal Law § 60.01[2][d] ). Accordingly, we vacate the probation component of the sentence. We decline to remand for a new sentencing, as requested by the People, in light of the fact that defendant has already been incarcerated for 11 months, which is close to the maximum sentence for this offense.