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People v. Michael

Appellate Division of the Supreme Court of New York, Second Department
Dec 2, 1985
115 A.D.2d 494 (N.Y. App. Div. 1985)

Opinion

December 2, 1985

Appeal from the Supreme Court, Queens County (O'Dwyer, J.).


Judgment modified, on the law, by reducing defendant's conviction of unauthorized use of a vehicle in the second degree to unauthorized use of a vehicle in the third degree and vacating the sentence imposed thereon. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Queens County, for resentencing upon defendant's conviction of unauthorized use of a vehicle in the third degree.

In order to convict a defendant of the crime of unauthorized use of a vehicle in the second degree, the People are required to prove that he or she has been previously convicted of the crime of unauthorized use of a vehicle in either the second or third degrees within the preceding 10 years (Penal Law § 165.06). Since the record fails to reveal proof of any prior convictions which would satisfy this element of unauthorized use of a vehicle in the second degree, the defendant's conviction under that count of the indictment must be reduced to unauthorized use of a vehicle in the third degree (Penal Law § 165.05) and the matter remitted for resentencing thereon.

Insofar as defendant has sought to challenge the denial of his postjudgment motion based upon newly discovered evidence (CPL 440.10 [g]), that issue is not cognizable upon this appeal from the judgment of conviction. We have examined defendant's remaining contentions and find them to be without merit. Gibbons, J.P., Bracken, Kunzeman and Kooper, JJ., concur.


Summaries of

People v. Michael

Appellate Division of the Supreme Court of New York, Second Department
Dec 2, 1985
115 A.D.2d 494 (N.Y. App. Div. 1985)
Case details for

People v. Michael

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALEX MICHAEL, Appellant

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

Date published: Dec 2, 1985

Citations

115 A.D.2d 494 (N.Y. App. Div. 1985)