People v. Gilchrist

231 A.D.2d 424, 647 N.Y.S.2d 77, 1996 N.Y. App. Div. LEXIS 9335

Opinion

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered January 31, 1996, resentencing defendant to a term of 5 to 15 years, upon his plea of guilty to attempted robbery in the first degree, unanimously modified, on the law, to reduce the sentence to 3 1/2 to 10 years, and otherwise affirmed.

Defendant, who was improperly sentenced as a second violent felony offender to a term of 5 to 10 years (People v Gilchrist, 223 AD2d 382), was improperly resentenced, as a first-time felony offender, to a term of 5 to 15 years. Defendant had a reasonable expectation of finality in the 10-year maximum term originally imposed pursuant to his plea bargain (see, Stewart v Scully, 925 F2d 58; People v Hoppie, 220 AD2d 528; cf., People v Spears, 228 AD2d 193), and the minimum period of imprisonment for a first-time attempted first-degree robbery offender at the time the instant offense was committed was one-third of the maximum term (Penal Law § 70.02 [1] [b]; [2] [a]; [former (4)]). Inasmuch as the 15-year maximum term imposed by the sentencing court shows that it would not, if given another opportunity to sentence, impose a maximum term of less than 10 years, we modify the resentence to 31/s to 10 years. Concur—Murphy, P. J., Rosenberger, Wallach, Kupferman and Nardelli, JJ.