People v. Hager

213 A.D.2d 1008, 625 N.Y.S.2d 972, 1995 N.Y. App. Div. LEXIS 3801

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing in accordance with the following Memorandum: Supreme Court sentenced defendant as a second felony offender to a term of four to eight years of imprisonment, stating that the sentence was the minimum permitted. The minimum sentence for a second violent felony offender is four to eight years (Penal Law § 70.04 [3] [b]); the minimum sentence for a second felony offender is only three to six years (Penal Law § 70.06 [3] [c]). The failure of the court to apprehend the extent of its discretion deprived defendant of the right to be sentenced as provided by law (see, People v Moore, 212 AD2d 1062; People v Woodard, 201 AD2d 896). Although defendant waived his right to appeal, he did not waive his right to be sentenced according to law (see, People v Seaberg, 74 NY2d 1, 9; People v Holley, 168 AD2d 992, 993). Because it is not apparent from the record whether the court intended to sentence defendant to a term of four to eight years, or the minimum of three to six years, we vacate the sentence and remit the matter to Supreme Court for resentencing (cf, People v Capers, 177 AD2d 992, 993-994, Iv denied 79 NY2d 944). (Appeal from Judgment of Supreme Court, Erie County, Kubiniec, J.—Attempted Robbery, 1st Degree.) Present—Lawton, J. P., Fallon, Wesley, Davis and Boehm, JJ.