Opinion
November 13, 1979
Appeal by the People from a sentence of the Supreme Court, Kings County, imposed April 17, 1979, which, upon adjudicating the defendant as being in violation of probation, sentenced her to a term of imprisonment of six months. Sentence reversed, on the law, and case remitted to Criminal Term for further proceedings consistent herewith. The defendant had been convicted of manslaughter in the second degree upon her plea of guilty. She was sentenced to a period of probation and placed in various drug programs, but each time left without permission. A hearing was held at which she was adjudicated as being in violation of probation and the court sentenced her to a term of imprisonment of six months. The People argue that probation was revoked and that therefore the defendant stood before the court as if she had just been convicted of manslaughter in the second degree, which is a class C felony, the minimum term for which was 0 to 3 years' imprisonment. The defendant, on the other hand, contends that the sentencing court merely intended to modify her sentence of probation by giving her a six-month "taste of jail". A reading of the sentencing minutes makes it unclear as to whether the sentencing court intended to modify the terms of probation, or to revoke it. In either event, the sentence imposed was illegal (see Penal Law, § 60.01, 70.00 Penal, subd 1). Therefore, the matter is remitted to the sentencing court for the imposition of sentence in accordance herewith. Hopkins, J.P., Titone, O'Connor and Margett, JJ., concur.