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PEOPLE STATE NEW YORK v. HARRY B. OGBURN (04/21/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


April 21, 1969

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
HARRY B. OGBURN, APPELLANT

Appeal by defendant from a judgment of the County Court, Dutchess County, rendered February 28, 1968 on resentence, convicting him of grand larceny in the first degree and petit larceny, upon a jury verdict, and sentencing him to concurrent terms of 8 to 10 years on the grand larceny count, as a first offender, and 11 months and 27 days on the petit larceny count.

Beldock, P. J., Christ, Brennan, Rabin, and Hopkins, JJ., concur.

Under sections 1295 and 2189 of the Penal Law, the sentence imposed on the grand larceny count was illegal in that, under the facts of this case, the minimum of defendant's sentence for grand larceny, as a first offender, could not properly exceed five years. Defendant must be resentenced in accordance with these provisions of the Penal Law.

Disposition

Judgment modified, on the law, to the extent of eliding the sentence on the grand larceny count and remanding the case to the County Court for resentencing on that count in accordance herewith. No findings of fact with respect to the sentence on the grand larceny count have been affirmed.

19690421

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