Opinion
Argued January 6, 1986
Decided January 14, 1986
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, G. Thomas Moynihan, Jr., J.
David A. Wait, District Attorney (Donna J. Arnold of counsel), for appellant.
John L. McMahon for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Although no appeal lies from the Appellate Division order of reversal "as a matter of discretion in the interest of justice" to review the intermediate appellate court's exercise of its discretion in declaring defendant a youthful offender (CPL 450.90 [a]), an appeal does lie to consider the narrow issue concerning the legality of that court's corrective action (CPL 450.90 [b]; People v Mackell, 40 N.Y.2d 59). We find no illegality in the Appellate Division's remittal to County Court for sentencing. In so concluding we do not read the Appellate Division's statement in its decision that County Court should "fix a reasonable definite term of incarceration along with a probationary period which includes the necessary counseling" (105 A.D.2d, at p 336) as in any way limiting the County Court's discretion to impose a sentence authorized by statute (CPL 720.20; Penal Law § 60.02).
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER and TITONE concur; Judge HANCOCK, JR., taking no part.
Order affirmed in a memorandum.