People v. Chandler

307 A.D.2d 770, 762 N.Y.S.2d 565, 2003 N.Y. App. Div. LEXIS 7932

Opinion

Appeal from a judgment of Erie County Court (D’Amico, J.), entered October 8, 1999, convicting defendant upon his plea of guilty of attempted robbery in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing in accordance with the following memorandum: Defendant was convicted upon his plea of guilty of attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [1]). During the plea colloquy, County Court advised defendant that the possible sentence was a determinate term of imprisonment ranging from 5 to 15 years. At sentencing, however, the court took the position that the most lenient sentence available was a determinate term of seven years and imposed that sentence.

Defendant contends that the court erred in determining at sentencing that seven years was the most lenient sentence it could impose. While that contention is encompassed within defendant’s voluntary, knowing, and intelligent waiver of the right to appeal, we nevertheless exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Pursuant to Penal Law § 70.06 (6) (b), defendant was subject, as a second felony offender, to a determinate sentence, for this class C violent felony, of “at least five years * * * not [to] exceed fifteen years.” Had the predicate felony also been a violent felony offense, the minimum term of imprisonment would have been seven years (see § 70.04 [3] [b]). In this case, however, the predicate felony was criminal contempt in the first degree (§ 215.51), a class E nonviolent felony. Thus, because the court acted under a mistake of law in sentencing defendant, we modify the judgment by vacating the sentence, and we remit the matter to Erie County Court for resentencing in accordance with the applicable statutory scheme (see CPL 470.20 [6]). Present — Green, J.P., Wisner, Burns, Gorski and Hayes, JJ.