Opinion
October 13, 1964
Appeal by defendant from a judgment of the former County Court, Queens County, rendered December 8, 1961 on his plea of guilty, convicting him of unlawful entry and petit larceny, and sentencing him, pursuant to article 7-A of the Correction Law, to serve an indeterminate term, not exceeding three years, in the New York City Penitentiary. Judgment reversed on the law, and the defendant directed to be discharged from custody. The findings of fact of the court below, implicit in the record and on which the judgment is founded, are affirmed. In our opinion, the statements made by the Trial Judge immediately preceding the imposition of the indeterminate sentence constituted unequivocal affirmative findings that the defendant was incapable of being substantially benefited by such a sentence; hence, the imposition of such indeterminate sentence under article 7-A of the Correction Law was unlawful ( People v. Gross, 5 A.D.2d 878, affd. 5 N.Y.2d 131; People ex rel. Kern v. Silberglitt, 4 N.Y.2d 59, 68; People v. Watson, 19 A.D.2d 631). "Since the appellant has already served more than one year (the maximum period of time to which he could have been sentenced), we see no necessity for the imposition of a new sentence. The ends of justice in this case will be accomplished by a reversal of the judgment and the discharge of the appellant" ( People v. Gross, 5 A.D.2d 878, supra). Beldock, P.J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.