People v. Yearry , 2 A.D.2d 932 ( 1956 )

Appeal from a judgment of the County Court, Schoharie County. Defendant was originally sentenced in 1946 as a second offender to 7 to 14 years for burglary, third degree, and to 3-% to 7 years for escape, the sentences to run concurrently. The earlier conviction upon which the sentence as a second offender was based was vacated in 1956 and the defendant then moved for resentence as a first offender. He was resentenced as a first offender on May 14, 1956 to a definite period of 10 years for burglary, third degree, and to a definite period of 5 years for escape, the sentences to run concurrently. He appeals directly from these sentences. The court was required to sentence defendant as a first offender to an indeterminate term. (Penal Law, § 2189.) Judgment reversed on the law and defendant remanded to the County Court of Schoharie County for resentence. Poster, P. J., Bergan, Coon, Halpern and Gibson, JJ., concur.