People v. Royster

96 A.D.2d 519, 464 N.Y.S.2d 560, 1983 N.Y. App. Div. LEXIS 19036

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 1983
• Status: Published

Opinion

— Appeal by the People from a sentence of the County Court, Rockland County (Edelstein, J.), imposed December 23,1982, upon defendant’s conviction of criminal sale of a controlled substance in the third degree, upon his plea of guilty, the sentencing being a term of five years’ probation. Sentence vacated, on the law, and matter remitted to the County Court, Rockland County, for resentencing in accordance herewith. The sentencing of this defendant, who was convicted of a class B felony, to a term of five years’ probation, violated section 70.00 (subd 3, par [b]) of the Penal Law. This is not one of those rare cases in which the particular facts justify a finding that the applicable sentencing provision would be unconstitutional if applied to the defendant. Indeed, prior to accepting the defendant’s plea of guilty, the court indicated that it intended to sentence him to an indeterminate term of one to three years’ imprisonment, the minimum permissible term. Accordingly, the sentence must be vacated and the matter remitted for resentencing in accordance with the law. Mollen, P. J., Mangano, Niehoff and Boyers, JJ., concur.