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People v. James

Appellate Division of the Supreme Court of New York, Second Department
Apr 5, 1971
36 A.D.2d 828 (N.Y. App. Div. 1971)

Opinion

April 5, 1971


Appeal by defendant from a judgment of the County Court, Suffolk County, rendered September 11, 1970, (1) adjudging him to have violated a condition of probation imposed in a prior judgment of resentence rendered December 22, 1969 upon a March 14, 1969 judgment adjudging him to be a youthful offender, on his guilty plea, and (2) sentencing him to an indefinite term of imprisonment in the Elmira Reception Center. Judgment reversed, on the law, and case remanded to County Court for proceedings not inconsistent herewith. Although this appeal cannot bring up for review the judgment rendered December 22, 1969, the time for an appeal from that judgment having expired and no separate appeal having been taken therefrom, we hold that it was an abuse of discretion to sentence defendant to imprisonment for probation violation. The condition of probation which defendant violated was that he not enter Suffolk County without authorization in advance from the Suffolk County Probation Department. Under the circumstances of this case, that condition was unduly harsh and its imposition was an abuse of discretion. Thus, it was an abuse of discretion to revoke probation for the violation of such a condition. The adjudication revoking probation should be reversed and the case remanded for a hearing to determine whether defendant violated the Special Narcotics Conditions of Probation and, if so, for a determination as to whether probation should be revoked on that ground. Latham, Acting P.J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.


Summaries of

People v. James

Appellate Division of the Supreme Court of New York, Second Department
Apr 5, 1971
36 A.D.2d 828 (N.Y. App. Div. 1971)
Case details for

People v. James

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES R.O…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 5, 1971

Citations

36 A.D.2d 828 (N.Y. App. Div. 1971)