           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

332
KA 11-00554
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

TIMOTHY JABLONSKI, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG,
JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered February 2, 2011. The judgment
convicted defendant, upon his plea of guilty, of attempted burglary in
the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by directing that the sentence shall
run concurrently with the previously imposed definite sentences and as
modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted burglary in the third degree
(Penal Law §§ 110.00, 140.20). As defendant contends and the People
correctly concede, Supreme Court erred in directing that the
indeterminate term of imprisonment that it imposed be served
consecutively to two definite sentences that had been previously
imposed (see former § 70.35). “The offense[s] underlying the definite
sentence[s were] committed prior to the date on which the
[indeterminate] sentence was imposed, and thus the definite
sentence[s] must run concurrently” with the indeterminate sentence
(People v Glinski [appeal No. 2], 37 AD3d 1188, 1189; see People v
Leabo, 84 NY2d 952, 953). We therefore modify the judgment
accordingly.




Entered:    March 23, 2012                         Frances E. Cafarell
                                                   Clerk of the Court
