People v. Latzen , 560 N.Y.S.2d 365 ( 1990 )

Mikoll, J.

Appeal from a judgment of the County Court of Sullivan County (Traficanti, Jr., J.), rendered May 3, 1989, convicting defendant upon his plea of guilty of the crimes of driving while intoxicated, aggravated unlicensed operation of a motor vehicle and violation of probation.

The only issue before this court is whether County Court properly sentenced defendant to continued probation for violation of probation. Defendant pleaded guilty to driving while intoxicated as a felony, unlicensed operation of a motor vehiele as a felony, and violation of an earlier probation; he was sentenced to one year of imprisonment on each felony conviction, to be served concurrently. The court also sentenced him to continued probation for the violation of probation conviction, but provided that the probation be tolled during his incarceration on the two felony charges and then to continue thereafter. Defendant claims that pursuant to Penal Law § 65.00 he may not be sentenced to probation if he also receives a sentence of more than six months’ incarceration. We agree.

Defendant may not receive at the same sentencing a term of five years’ probation on one conviction and more than six months of incarceration on another conviction (see, People v Jackson, 144 AD2d 1031; People v Curkendall, 141 AD2d 891; People v McIntyre, 135 AD2d 920). Thus, County Court had no power to sentence him to continued probation on the violation of probation charge (see, People v McIntyre, supra, at 921). The sentence of probation must therefore be vacated.

Judgment modified, on the law, by vacating so much of the sentence as continued defendant on probation, and, as so modified, affirmed.

Kane, J. P., Casey, Weiss, Mikoll and Yesawich, Jr., JJ., concur.