People v. Predmore

142 A.D.2d 759, 530 N.Y.S.2d 507, 1988 N.Y. App. Div. LEXIS 7245

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 1988
• Status: Published

Opinion

Mikoll, J.

Appeal from a judgment of the County Court of Tompkins County (Barrett, J.), rendered October 28, 1986, convicting defendant upon his plea of guilty of the crime of attempted arson in the second degree.

Defendant was charged by indictment with arson in the second degree, assault in the third degree and six counts of attempted murder in the second degree. He entered a bargained plea of guilty to attempted arson in the second degree in satisfaction of the entire indictment and was given an indeterminate sentence of 4 to 8 years’ imprisonment.

On this appeal defendant’s only claim of error is that the sentence is invalid due to mutual mistake. He requests that it be reduced in the interest of justice. The District Attorney, with commendable candor, concedes that the parties agreed that defendant would be sentenced as a second felony offender to the shortest permissible term of imprisonment and states that the term should have been 3 to 6 years. It appears that the sentence was mistakenly imposed and that it was the intent of County Court to impose a term of 3 to 6 years and not 4 to 8 years. The judgment should be modified in the exercise of our discretion in the interest of justice by reducing the sentence imposed to an indeterminate prison sentence with a maximum term of 6 years and a minimum term of 3 years (see, People v Fuller, 57 NY2d 152, 156; see also, People v Thompson, 60 NY2d 513, 519-520; People v Wilkerson, 121 AD2d 284; People v Pitcher, 64 AD2d 821).

Judgment modified, as a matter of discretion in the interest of justice, by reducing the maximum period of the indeterminate sentence of imprisonment from 8 years to 6 years and the minimum period from 4 years to 3 years, and as so modified, affirmed. Mahoney, P. J., Casey, Weiss, Mikoll and Harvey, JJ., concur.