Opinion
February 10, 1975
Appeal from the Criminal Court of the City of New York, County of Bronx, E. LEO MILONAS, J., MAURICE W. GREY, J.
William E. Hellerstein and William J. Gallagher (Christopher B. Kende of counsel), for appellant.
Mario Merola, District Attorney (Nina Gottlieb Spiegler of counsel), for respondent.
Section 422 Veh. Traf. of the Vehicle and Traffic Law provides that wrongful possession of a vehicle with a changed identification number is a "misdemeanor, and punishable by a fine of not less than twenty-five dollars nor more than fifty dollars". Notwithstanding the designation of the offense as a "misdemeanor" in the Vehicle and Traffic Law, under subdivision 3 of section 55.10 Penal of the Penal Law the offense is actually a "violation". (People v Star Supermarkets, 67 Misc.2d 483, affd 40 A.D.2d 946.) The applicable provision of section 55.10 Penal of the Penal Law is to the effect that, notwithstanding any other designation specified in the law defining it, an offense for which the only sentence is a fine is a violation (subd 3, par [a]). Section 65.00 Penal of the Penal Law, governing sentences of probation, does not authorize the sentence of probation in the case of a "violation". An imposition on defendant of the sentence of probation for violating section 422 Veh. Traf. of the Vehicle and Traffic Law was accordingly without legal foundation.
The judgment of conviction, rendered May 20, 1974 (E. LEO MILONAS, J., at plea; MAURICE W. GREY, J., at sentence) is modified by reversing it on the law with respect to the sentence and remanding the case to the court below for resentence in accordance with the foregoing, and, as modified, is affirmed.
Concur: DUDLEY J.P., FINE and HUGHES, JJ.