People v. Velazquez

162 A.D.2d 745

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 1990
• Status: Published

Opinion

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Slavin, J.), imposed March 29, 1988, the sentence being an indeterminate term of 5 to 10 years, upon his conviction of criminal possession of a controlled substance in the third degree, after a plea of guilty, to run concurrently to an indeterminate term of 2 Vi to 5 years’ imprisonment upon the charge of criminal possession of a weapon in the third degree.

Ordered that the sentence is modified, on the law, by vacating the indeterminate term of 2 Vi to 5 years’ imprisonment imposed upon the charge of criminal possession of a weapon in the third degree; as so modified, the sentence is affirmed.

Although it appears that criminal possession of a weapon in the third degree was among the original counts of the indictment, the minutes of the plea proceeding make clear that the defendant pleaded guilty to criminal possession of a controlled substance in the third degree "to cover” the entire indictment. The Supreme Court was therefore without jurisdiction to impose an indeterminate term of 2 Vi to 5 years’ imprisonment for criminal possession of a weapon in the third degree (see, People v Tulko, 135 AD2d 851). There is, however, no basis for disturbing the term of imprisonment imposed for criminal possession of a controlled substance in the third degree (see, People v Kazepis, 101 AD2d 816). Mangano, P. J., Kunzeman, Rubin and Harwood, JJ., concur.