People v. Allen

267 A.D.2d 982, 700 N.Y.S.2d 904, 1999 N.Y. App. Div. LEXIS 13710

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Wayne County Court for further proceedings in accordance with the following Memorandum: The People candidly concede that defendant’s conviction under count two of the indictment is illegal because defendant did not plead guilty to that count (see generally, People v Irwin, 166 AD2d 924). The People further concede that the sentence under count one should be vacated. In discussing with defendant whether he should withdraw his guilty plea under count one, the court incorrectly informed defendant that the minimum term of incarceration to which he could be sentenced was 4 to 8 years when the minimum authorized by law at the time of the offense was 3 to 6 years. The People agree with defendant that he should be afforded the opportunity to withdraw his guilty plea or be resentenced (see generally, People v Hurd, 220 AD2d 454).

Consequently, we modify the judgment by reversing the conviction under count two of the indictment and vacating the sentences under counts one and two (see, CPL 470.15 [2] [c]), and we remit the matter to Wayne County Court to afford defendant the opportunity to withdraw his guilty plea or be resentenced. (Appeal from Judgment of Wayne County Court, Sirkin, J. — Robbery, 2nd Degree.) Present — Green, J. P., Law-ton, Wisner, Scudder and Balio, JJ.