People v. Hager

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1995
• Status: Published

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.