State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 17, 2014 106067
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THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
LUIS F. ALEMAN JR.,
Appellant.
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Calendar Date: June 9, 2014
Before: Lahtinen, J.P., McCarthy, Garry, Egan Jr. and Clark, JJ.
__________
G. Scott Walling, Queensbury, for appellant.
James A. Murphy III, District Attorney, Ballston Spa (Ann
C. Sullivan of counsel), for respondent.
__________
Appeal from a judgment of the County Court of Saratoga
County (Scarano, J.), rendered May 17, 2012, convicting defendant
upon his plea of guilty of the crimes of grand larceny in the
fourth degree and identity theft in the second degree.
Defendant pleaded guilty to grand larceny in the fourth
degree and identity theft in the second degree in satisfaction of
a pending indictment, and waived his right to appeal. County
Court imposed the agreed-upon sentence, namely, one year in jail
upon the grand larceny conviction to be followed by five years of
probation upon the identity theft conviction. Defendant now
appeals.
The People correctly agree with defendant's contention that
a split sentence of one year in jail for a felony in addition to
five years of probation is illegal (see Penal Law §§ 60.01 [2]
-2- 106067
[d]; 65.00 [1] [b]; People v Zephrin, 14 NY3d 296, 299-300
[2010]; People v Cortese, 79 AD3d 1281, 1284 [2010], lv denied 16
NY3d 857 [2011]). Contrary to the parties' further arguments,
however, this error does not affect the propriety of the sentence
in this case. Defendant had already served a year in jail when
he pleaded guilty, and County Court stressed that the jail
sentence amounted to time served. While County Court should
"have expressly imposed a sentence of six months in jail which
was satisfied by the time the defendant had been held pending his
conviction," its sentence amounted to one of time served that did
"not retroactively render [defendant's] sentence illegal" (People
v Marinaccio, 297 AD2d 754, 755 [2002], lv denied 99 NY2d 560
[2002]; see People v Cortese, 79 AD3d at 1284; People v Conley,
70 AD3d 961, 962 [2010], lv denied 14 NY3d 886 [2010]; see e.g.
People v Watson, 20 NY3d 182, 190 n 4 [2012]).
That being said, defendant's "term of probation [must run]
together with the term of imprisonment, not to exceed five
years," and the imposition of agreed-upon consecutive sentences
was illegal (People v Zephrin, 14 NY3d at 301). We accordingly
modify the judgment to direct that defendant's sentences run
concurrently although, in that regard, we stress that defendant's
term of probation may only be reduced by a time-served credit of
six months, representing the maximum permissible jail sentence
(People v Zephrin, 14 NY3d at 301; cf. People v Cortese, 79 AD3d
at 1284 n).
Lahtinen, J.P., McCarthy, Garry, Egan Jr. and Clark, JJ.,
concur.
-3- 106067
ORDERED that the judgment is modified, on the law, by
directing that defendant's sentences shall run concurrently
rather than consecutively, and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court