People v. Kornegay ( 1977 )

Herlihy, J. (concurring in part and dissenting in part).

Unlike the situation in People v Ranellucci (53 AD2d 384) and People v Hankins (52 AD2d 470) the defendant never made any effort to obtain a speedy trial and he has asserted no prejudice. Under such circumstances the negligence of the State in securing a speedy trial did not result in a violation of his constitutional rights (see People v Ranellucci, supra; People v Taranovich, 37 NY2d 442).

However, the majority proposes to reduce the sentence because the People would so consent and in fact have urged a reduction. The sentence was imposed by the trial court which heard all of the evidence and had the opportunity to closely assess the defendant. It is certain that the trial court did not abuse its discretion in imposing an indeterminate term of four years and the defendant has not questioned the sentence.

This court has no power to reduce a sentence without first finding a legal error by the trial court or that the sentence imposed was excessive.

The judgment should be affirmed in all respects.

Sweeney and Larkin, JJ., concur with Koreman, P. J.; Kane, J., concurs in the result only; Herlihy, J., concurs in part and dissents in part in an opinion.

Judgment modified, on the law and the facts, by reducing the sentence to the time already served by the defendant, and, as so modified, affirmed.