People v. Ortiz

297 A.D.2d 758, 747 N.Y.2d 789, 747 N.Y.S.2d 789, 2002 N.Y. App. Div. LEXIS 8639

Opinion

The defendant pleaded guilty to attempted criminal sale of a controlled substance in the first degree, a class A-I felony (see Penal Law § 110.05 [1]; § 220.43), with the understanding that he would receive a sentence of five years to life. However, a sentence of an indeterminate term of imprisonment of five years to life constitutes an illegally low sentence for a class A-I felony (see Penal Law § 70.00 [3] [a] [i]). Apparently, the parties and the court were under the mistaken impression that the crime of attempted criminal sale of a controlled substance in the first degree was a class A-II felony, which would permit the imposition of the agreed-upon sentence (see Penal Law § 70.00 [3] [a] [ii]). Under these circumstances, with the consent of the People, the conviction of attempted criminal sale of a controlled substance in the first degree should be reduced to attempted criminal sale of a controlled substance in the second degree to effectuate the clear purpose and intent of the plea agreement (see People v Carter, 196 AD2d 633, 634; People v Rozo, 196 AD2d 514, 515; People v Laino, 186 AD2d 226; see also People v Labode, 280 AD2d 400). Accordingly, the matter is remitted to the Supreme Court, Kings County, for that purpose. Santucci, J.P., Smith, Goldstein, H. Miller and Mastro, JJ., concur.