People v. McCloskey

272 A.D.2d 983, 708 N.Y.S.2d 677, 2000 N.Y. App. Div. LEXIS 5292

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2000
• Status: Published

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Erie County Court for further proceedings in accordance with the following Memorandum: Defendant entered a plea of guilty to attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [1]) and another crime with the understanding that he would be sentenced as a second felony offender to an indeterminate term of imprisonment with a maximum of three years and a minimum of IV2 years. At sentencing, County Court imposed the agreed-upon sentence and further ordered defendant to pay restitution in the amount of $594.43. The court erred in imposing a sentence more severe than that bargained for (see, People v Lefler, 193 AD2d 1143). Thus, we modify the judgment by vacating the sentence, and we remit the matter to Erie County Court to impose the sentence promised or to afford defendant the opportunity to withdraw his plea (see, People v Lefler, supra). (Appeal from Judgment of Erie County Court, DiTullio, J. — Attempted Assault, 2nd Degree.) Present — Green, J. P., Hayes, Wisner and Hurlbutt, JJ.