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People v. Napolitano

Appellate Division of the Supreme Court of New York, Second Department
Jan 8, 1990
157 A.D.2d 675 (N.Y. App. Div. 1990)

Opinion

January 8, 1990

Appeal from the Supreme Court, Kings County (Beldock, J.).


Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance with Penal Law § 70.06.

The defendant was convicted of the crime of robbery in the first degree, which is a class B felony (see, Penal Law § 160.15). As a second felony offender, he faced a possible sentence ranging from a minimum of 4 1/2 to 9 years, to a maximum of 12 1/2 to 25 years (Penal Law §§ 70.06 [b]; [4] [b]). During sentencing, the court erroneously stated that "[t]he sentence for this crime is in the area from the minimum of 6 to 12 and a maximum of 12 1/2 to 25", and thereupon imposed a sentence of from 8 1/2 to 17 years' imprisonment. Since the court erroneously interpreted the law with respect to the permissible range of sentences available to it, we deem it appropriate to vacate the sentence imposed and remit for resentencing. In so remitting this matter for resentencing, we do not pass upon the propriety of the sentence originally imposed.

We have reviewed the defendant's remaining argument and find it to be unpreserved for appellate review for the most part (see, People v. Medina, 53 N.Y.2d 951, 953), and, in any event, without merit (see, People v. Galloway, 54 N.Y.2d 396; People v. Glenn, 140 A.D.2d 623). Mangano, J.P., Bracken, Sullivan and Balletta, JJ., concur.


Summaries of

People v. Napolitano

Appellate Division of the Supreme Court of New York, Second Department
Jan 8, 1990
157 A.D.2d 675 (N.Y. App. Div. 1990)
Case details for

People v. Napolitano

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MICHAEL NAPOLITANO…

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

Date published: Jan 8, 1990

Citations

157 A.D.2d 675 (N.Y. App. Div. 1990)

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