People v. Florence

45 A.D.2d 743, 356 N.Y.S.2d 666, 1974 N.Y. App. Div. LEXIS 4714

Opinion

Appeal by defendant, as limited by his brief, from a sentence of the County Court, Orange County, rendered February 13, 1973, committing him to an indeterminate prison term not to exceed five years, upon a conviction of criminal possession of a dangerous drug in the fifth degree, upon a guilty plea. Sentence reversed, on the law, and case remitted to the County Court for resentencing in accordance with the views herein set forth. Defendant was convicted of a class E felony and sentenced to a prison term with a five-year maximum. Section 70.00 (subd. 2, par. [e]) of the Penal Law, however, provides that the maximum term of an indeterminate sentence for a class E felony shall not exceed four years. Thus, the sentence imposed exceeds the statutory maximum. Accordingly, defendant must he resentenced. Hopkins, Acting P. J., Cohalan, Christ, Benjamin and Munder, JJ., concur.