Opinion
April 7, 1977
Appeal from the Erie County Court.
Present — Marsh, P.J., Moule, Dillon, Goldman and Witmer, JJ.
Judgment unanimously affirmed. Memorandum: Defendant pleaded guilty with the understanding that the court would sentence him to the time remaining to be served on a prior sentence which he was serving, to run concurrently with that time. The court sentenced him "to an indeterminate period of imprisonment which shall have a maximum term of three years", to be concurrent with the sentence which he was then serving. The record does not show the length of time remaining on the sentence which defendant was serving at the time of this sentence. On this appeal defendant asks for reversal so that he can elect to withdraw his plea or have the court resentence him in a manner to reflect the agreement under which his plea was entered. We note that defendant did not object to the sentence when it was pronounced, from which it may be inferred that the sentence which he was then serving had no less than a maximum of three more years to run. Because of the probability that his sentence complies with the agreement made, we find no reason to reverse, and, therefore, we affirm. This affirmance, however, is without prejudice to defendant instituting a new proceeding to establish that his prior commitment had less than a maximum of three years remaining when he was sentenced herein, and also without prejudice to defendant's right, at the termination of such prior commitment, if that occurs before the end of his sentence herein; to institute an appropriate proceeding to modify this sentence accordingly.