People v. Rice , 85 A.D.2d 701 ( 1981 )

Appeals by defendants from three judgments (one as to each of them) of the Supreme Court, Westchester County (Orlando, J.), all rendered August 9, 1979, convicting each of them of criminal mischief in the second degree and criminal possession of a weapon in the fourth degree (two counts), after a nonjury trial, and imposing sentences. Judgment as to defendant Rice affirmed. Judgments as to defendants Ruth and Bandl modified, on the law, by vacating the sentences imposed upon the convictions of criminal possession of a weapon in the fourth degree. As so modified, judgments as to defendants Ruth and Bandl affirmed and matter remitted to Criminal Term for resentencing in accordance herewith. Defendants Ruth and Bandl were each convicted of criminal mischief in the second degree, a class D felony (Penal Law, § 145.10) and of two counts of criminal possession of a weapon in the fourth degree, a class A misdemeanor (Penal Law, § 265.01). Each of these defendants was sentenced to 60 days’ “shock probation” and 4 years and 10 months’ probation on each count, all sentences to run concurrently. The period of probation for a class A misdemeanor is three years (Penal Law, § 65.00, subd 3, par [b]). Thus, the sentences imposed on the counts of criminal possession of a weapon in the fourth degree were illegal. Accordingly, we remit the matter for resentencing on those counts. Mollen, P. J., Hopkins, Titone, Weinstein and Bracken, JJ., concur.