People v. Shade

254 A.D.2d 438, 678 N.Y.S.2d 908, 1998 N.Y. App. Div. LEXIS 11062

Opinion

Appeal by the defendant from a judgment of the County Court, Orange County (Byrne, J.), rendered October 28, 1996, convicting him of attempted criminal possession of a controlled substance in the first degree, upon his plea of guilty, and sentencing him to an indeterminate term of six years to life imprisonment.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant’s conviction to attempted criminal possession of a controlled substance in the second degree; as so modified, the judgment is affirmed.

The defendant was not deprived of the effective assistance of counsel. The defendant, upon the advice of counsel, reaped the benefit of an extremely favorable plea agreement (see, People v Paterno, 141 AD2d 771).

The sentence imposed by the County Court was less than the minimum allowable under the terms of the Penal Law (see, Penal Law § 70.00 [3] [a] [i]; § 110.05 [1]; § 220.21). Under all the circumstances of this case, including the consent of the People, we conclude that the appropriate remedy is to give effect to the intent of the parties’ plea agreement by reducing the grade of the offense upon which the defendant’s conviction is based (see, Penal Law § 70.00 [3] [a] [ii]; § 220.18; People v Carter, 196 AD2d 633). Rosenblatt, J. P., O’Brien, Sullivan, Krausman and Florio, JJ., concur.