
    The People of the State of New York, Respondent, v Richard Cataldi, Appellant.
    [605 NYS2d 1008]
   —Judgment unanimously modified on the law and as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: The People concede that, because defendant served a six-month term of imprisonment before he was charged with a violation of conditions of probation, defendant’s resentence to a one-year term of imprisonment on the petit larceny counts was unlawful and must be vacated (see, CPL 430.10; People v Yannicelli, 40 NY2d 598, 602).

Defendant waived his right to appeal from the original sentence for his conviction of grand larceny and petit larceny, and County Court’s finding that defendant violated the conditions of probation as part of that sentence is supported by legally sufficient evidence and is not contrary to the weight of the evidence. We nevertheless exercise our discretionary power (see, CPL 470.15 [6] [b]) to modify the sentence following defendant’s conviction for that violation by reducing the term of imprisonment for grand larceny in the third degree to the six-month term already served. (Appeal from Judgment of Erie County Court, Drury, J. — Violation of Probation.) Present —Green, J. P., Balio, Fallon, Doerr and Boehm, JJ.  