People
v.
Leabo

Not overruled or negatively treated on appealinfoCoverage
Court of Appeals of the State of New YorkDec 6, 1994
84 N.Y.2d 952 (N.Y. 1994)
84 N.Y.2d 952644 N.E.2d 1376620 N.Y.S.2d 820

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Argued October 18, 1994

Decided December 6, 1994

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Robert G. Main, Jr., J.

Richard H. Edwards, District Attorney of Franklin County, Malone, for appellant.

Richard Rivera, Albany, for respondent.


MEMORANDUM.

The order of the Appellate Division should be affirmed.

Pursuant to a negotiated plea agreement, defendant was sentenced to a one-to-three-year indeterminate term of imprisonment on his conviction for driving while intoxicated as a felony and a one-year determinate sentence on his conviction for fourth degree criminal mischief. As the court below noted, Penal Law § 70.35 is applicable, since the criminal mischief offense was committed before the indeterminate sentence was imposed. That statute, which provides that "service of an indeterminate sentence of imprisonment shall satisfy any definite sentence of imprisonment imposed on a person for an offense committed prior to the time the indeterminate sentence was imposed," contemplates that the definite and indeterminate sentences will be served concurrently. Accordingly, the Appellate Division correctly modified defendant's sentence to make the indeterminate and definite terms run concurrently rather than consecutively, as the trial court had directed.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.

Order affirmed in a memorandum.