People v. Dabbs

280 A.D.2d 611, 720 N.Y.S.2d 826, 2001 N.Y. App. Div. LEXIS 1657

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2001
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Rosato, J.), rendered February 10, 1999, convicting him of criminal possession of a weapon in the third degree and menacing in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.

As properly conceded by the People, the bargained-for three-year determinate sentence imposed on the defendant’s conviction for criminal possession of a weapon in the third degree under Penal Law § 265.02 (1) was illegal (see, Penal Law § 70.06 [3] [d]; § 60.05 [6]). Thus, since the defendant pleaded guilty with the understanding that he would receive a sentence which was illegal, the matter is remitted to the Supreme Court, Westchester County, to give the defendant the option to withdraw his plea or receive a legal sentence (see, People v Ruiz, 226 AD2d 747; People v Ford, 143 AD2d 522). Ritter, J. P., Rrausman, Florio and Feuerstein, JJ., concur.