Opinion
March 31, 1977
Judgment, Supreme Court, Bronx County, rendered October 28, 1975, convicting defendant, upon his plea of guilty, of manslaughter in the first degree, and sentencing him, as a second felony offender, to an indeterminate term of from 10 to 20 years, unanimously modified, on the law and in the interest of justice, to the extent of reducing the sentence to an indeterminate term of from 8 1/3 to 16 2/3 years, and, as so modified, affirmed. The pleading minutes disclose that defendant was informed by the court that manslaughter in the first degree is a class B felony and that if he pleaded guilty he could be sentenced to a term which would not exceed 25 years (Penal Law, § 125.20, 70.00 Penal). Defendant was further informed that the court was authorized to impose a minimum of eight and one-third years. On the basis of this and other information, defendant pleaded guilty to manslaughter in the first degree. At sentencing, the prosecutor filed a predicate felony statement (CPL 400.21) alleging that defendant had been previously convicted in Puerto Rico of robbery and possession of a concealed weapon. For a second felony offender the maximum term is 9 to 25 years and the minimum must be one half the maximum imposed (Penal Law, § 70.06). Having determined to impose a maximum of 20 years, the court was constrained to impose a minimum of 10 years. Defendant, stressing that he was under the apprehension that the predicate felony, having been committed in Puerto Rico, was not relevant, contends that his ignorance of the mandatory minimum sentence he would receive renders his plea involuntary. In essence, defendant's plaint is that although no specific expressed promise regarding sentence was made, a sentence promise may be inferred whereby the minimum could not exceed eight and one-third years. On this unique record, we agree. Accordingly, in order to comply with the minimum sentence commitment, it is concluded that defendant's sentence be reduced to an indeterminate term of 8 1/3 to 16 2/3 years.
Concur — Kupferman, J.P., Murphy, Lupiano and Markewich, JJ.