Opinion
October 5, 1990
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Doerr, J.P., Denman, Boomer, Pine and Lawton, JJ. (Order entered Sept. 26, 1990.)
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing, in accordance with the following memorandum: The People concede that, due to the 1986 amendment to the Penal Law pertaining to stolen property, the judgment of conviction erroneously states that defendant was convicted of criminal possession of stolen property in the second degree rather than criminal possession of stolen property in the fifth degree. Based on this conviction defendant was sentenced to five years' probation and, following his 1989 plea of guilty to violating the terms of his probation, his probation was revoked and he was sentenced to an indeterminate term of imprisonment for a maximum of six years and a minimum of two years. Because the maximum term of imprisonment for criminal possession of stolen property in the fifth degree, a class A misdemeanor, is one year, defendant's sentence is illegal. We therefore remit this matter to Supreme Court, Erie County, for resentencing.