| People v Zephrin |
| 2008 NY Slip Op 07276 [54 AD3d 1066] |
| September 30, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Patrick Zephrin, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and SusanPaulson of counsel), for respondent.
Appeal by the defendant from an amended judgment of the Supreme Court, Kings County(Leventhal, J.), rendered January 31, 2006, revoking a sentence of probation previously imposedby the County Court, Suffolk County (Farneti, J.), upon a finding that he violated a conditionthereof, upon his admission, and imposing a sentence of imprisonment upon his previousconviction of grand larceny in the third degree.
Ordered that the amended judgment is reversed, on the law, and the sentence imposedthereon is vacated.
On January 3, 2001, the defendant was sentenced in the County Court, Suffolk County, uponhis plea of guilty to grand larceny in the third degree, to a term of six months imprisonment andfive years probation. The sentencing court acknowledged that the defendant was in custody andwould receive credit for time served and, on appeal, the People acknowledge that the defendantwas taken into custody on August 31, 2000. On December 5, 2005, a declaration of delinquencywas filed in the Supreme Court, Kings County, alleging that the defendant had violated acondition of his probation. During the violation of probation hearing, the defendant claimed thatsince he had served time in prison before pleading guilty and the term of probation ranconcurrently with the term of imprisonment, the probationary period began [*2]to run on August 31, 2000, the date he was taken into custody, andexpired prior to the filing of the declaration of delinquency. The Department of Probation arguedthat the term of probation began to run from the date the sentence was imposed. After theSupreme Court concluded that the declaration of delinquency was filed before the term ofprobation had expired and rejected the defendant's claim, the defendant admitted that he hadviolated a condition of his probation.
The defendant's period of probation began to run when the defendant was incarcerated(see Penal Law § 60.01 [2] [d]; People v Dawson, 301 AD2d 659, 660[2003]; People v Montgomery, 115 AD2d 102 [1985]). Therefore, the defendant'sprobationary period was completed in August 2005, before the declaration of delinquency wasfiled. Accordingly, we reverse the amended judgment revoking his probation and vacate thesentence imposed thereon. Fisher, J.P., Florio, Angiolillo, Dickerson and Belen, JJ., concur.