Opinion
920
May 21, 2002.
Judgment, Supreme Court, New York County (Bernard Fried, J. at suppression hearing; Laura Visitacion-Lewis, J. at plea and sentence), rendered November 17, 1999, convicting defendant of attempted criminal possession of a controlled substance in the first degree, and sentencing him to a term of 8 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction and substituting a conviction of attempted criminal possession of a controlled substance in the second degree, and otherwise affirmed.
Susan Gliner, for respondent.
Steven J. Miraglia, for defendant-appellant.
Before: Nardelli, J.P., Sullivan, Ellerin, Lerner, Rubin, JJ.
Defendant's suppression motion was properly denied. There is no basis upon which to disturb the court's credibility determinations, which are supported by the record (see, People v. Prochilo, 41 N.Y.2d 759, 761). The credible evidence clearly established that defendant abandoned the suitcase in question. Defendant's conviction should be modified to the extent indicated in order to effectuate the intent of the plea agreement (People v. Labode, 280 A.D.2d 400, lv denied 96 N.Y.2d 831). The minutes of the plea proceeding show that the parties were under the mistaken impression that in pleading guilty to the crime of attempted criminal possession of a controlled substance in the first degree defendant could be sentenced to the promised eight years to life, when, in fact, the attempt to commit such crime remains a Class A-I felony (Penal Law § 110.05(1)), requiring a minimum of at least 15 years (Penal Law § 70.00[a][I]). We thus modify the conviction to conform to the parties' intent as regards sentence.
We perceive no basis for a reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.