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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Respondent, v. Antonio MARINACCIO, Appellant.

Decided: September 23, 2002

ANITA R. FLORIO, J.P., SONDRA MILLER, STEPHEN G. CRANE and WILLIAM F. MASTRO, JJ. Amy L. Colvin, Halesite, NY, for appellant. Denis Dillon, District Attorney, Mineola, N.Y. (Peter A. Weinstein and Jodi A. Danzig of counsel), for respondent.

Appeal by the defendant (1), as limited by his motion, from two sentences of the County Court, Nassau County (Cotter, J.), both imposed February 1, 2001, upon his convictions of operating a motor vehicle under the influence of alcohol or drugs as a felony, and reckless endangerment in the second degree, under Superior Court Information No. 2426/00, and operating a motor vehicle while under the influence of alcohol or drugs, aggravated unlicensed operation of a motor vehicle in the second degree and disorderly conduct under Superior Court Information No. 2427/00, upon his pleas of guilty, and (2) from an amended judgment of the same court, also rendered February 1, 2001, revoking a sentence of probation previously imposed by the same court, upon his admission that he had violated a condition thereof, and imposing a term of imprisonment upon his previous conviction of driving while intoxicated under Indictment No. 98510/97.

ORDERED that the sentences and the amended judgment are affirmed.

Following his 1996 arrest, inter alia, for driving while intoxicated (hereinafter DWI), the defendant remained in custody for 294 days pending trial.   Upon his resulting 1997 felony DWI conviction, pursuant to his plea of guilty, the defendant was sentenced to “time served” (see Penal Law § 70.30 [3] ), concurrent with five years probation.

After the defendant was twice arrested in 2000 on charges, inter alia, of operating a motor vehicle while under the influence of alcohol or drugs, he entered into a plea agreement pursuant to which he received concurrent sentences of 1 1/212 to 4 1/212 years imprisonment in satisfaction of the new charges.   He also acknowledged violating the sentence of probation imposed in 1997, agreeing to be sentenced to a consecutive term of 1 1/212 to 4 1/212 years;  the court subsequently reduced this consecutive sentence to 1 1/313 to 4 years.

Contrary to the defendant's contention, the sentence on his 1997 felony conviction for driving while intoxicated was not illegal.   In pronouncing sentence from the bench the court used the colloquial phrase “time served” plus five years probation.   While the defendant correctly notes that a sentence of six months is the maximum permissible jail term that may be combined with a sentence of five years probation (see Penal Law § 60.01[2][d] and 65.00 [3][a] [i] ), the mere fact that he remained in custody in excess of six months before sentencing did not render the “time served” element of the sentence illegally excessive.   While the court should have expressly imposed a sentence of six months in jail which was satisfied by the time the defendant had been held pending his conviction (see Penal Law § 70.30[3] ), that is the sentence that was effectively imposed.   That the defendant served in excess of six months before his conviction does not retroactively render his sentence illegal.   As such, the amended judgment entered upon his adjudication of violating his probation need not be disturbed.

The parties' remaining contentions are without merit or are not properly presented for appellate review.

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