| People v Teddy W. |
| 2008 NY Slip Op 09105 [56 AD3d 697] |
| November 18, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v TeddyW., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein andJulian L. Kalkstein of counsel), for respondent.
Appeal by the defendant from an amended judgment of the Supreme Court, Kings County(Dowling, J.), rendered September 11, 2006, revoking a sentence of probation previouslyimposed by the same court, upon a finding that he violated a condition thereof, upon hisadmission, and imposing a sentence of imprisonment upon his previous conviction of attemptedassault in the first degree.
Ordered that the amended judgment is reversed, on the law, and the sentence imposedthereon is vacated.
On October 12, 2000, upon his plea of guilty to attempted assault in the first degree, thedefendant was sentenced to a term of six months' imprisonment and five years' probation. Thesentencing court acknowledged that the defendant would receive credit for time served, whichhad already exceeded the six-month term. On August 4, 2005 a declaration of delinquency wasfiled, alleging that the defendant had violated a condition of his probation. During the violationof probation hearing, the defendant claimed that, since he had served time in prison beforepleading guilty and the term of probation ran concurrently with the term of imprisonment, theprobationary period had expired prior to the filing of the declaration of delinquency, taking intoaccount credit for time served. After the Supreme Court rejected the defendant's claim, thedefendant admitted that he had violated a condition of his probation.
The defendant's period of probation included the six-month jail term for which he received[*2]credit for time served (see Penal Law § 60.01[2] [d]; People v Zephrin, 54 AD3d 1066 [2008]; People v Dawson, 301 AD2d659, 660 [2003]). Therefore, the defendant's probationary period was completed in April 2005before the declaration of delinquency was filed. Accordingly, we reverse the amended judgmentrevoking his probation and vacate the sentence imposed thereon. Spolzino, J.P., Ritter, Santucciand Carni, JJ., concur.