Opinion
May 4, 2000
Appeal from a judgment of the County Court of Ulster County (Bruhn, J.), rendered January 4, 1999, convicting defendant upon his plea of guilty to the crimes of use of a child in a sexual performance (four counts), sexual abuse in the first degree, sodomy in the first degree (three counts), sodomy in the third degree and possessing a sexual performance by a child.
Paul L. Gruner, Public Defender (Denise Dourdeville of counsel), Kingston, for appellant.
Donald A. Williams, District Attorney (Joan Gudesblatt Lamb of counsel), Kingston, for respondent.
Before: MERCURE, J.P., CREW III, PETERS, SPAIN and GRAFFEO, JJ.
MEMORANDUM AND ORDER
Defendant was charged in a 65-count indictment with multiple crimes involving sexual conduct with nine children between July 1993 and January 1998. He subsequently moved to dismiss the indictment on various grounds. Prior to a decision on that motion and in full satisfaction of the indictment, he pleaded guilty to sexual abuse in the first degree, sodomy in the third degree, possessing a sexual performance by a child, four counts of use of a child in a sexual performance and three counts of sodomy in the first degree.
Defendant's plea was entered with the understanding that he would receive an aggregate prison sentence of 10 to 20 years and that he was waiving his right to have County Court decide his motion to dismiss the indictment. He was thereafter sentenced to the agreed-upon prison term, parsed as follows: sexual abuse in the first degree, 2+ to 7 years; sodomy in the third degree, 1+to 4 years; possessing a sexual performance by a child, 1+ to 4 years; use of a child in a sexual performance, 5 to 15 years; and sodomy in the first degree, 10 to 20 years. All sentences were to run concurrently.
Upon this appeal, defendant challenges seven of the 10 counts of the indictment to which he pleaded guilty as factually inaccurate, improperly amended prior to his plea and grounded upon insufficient proof. By pleading guilty following the amendment of the indictment, defendant waived any alleged error in permitting the amendments (see, People v. Priester, 255 A.D.2d 834; People v. Hunt, 148 A.D.2d 836, 837, lv denied 74 N.Y.2d 665) and further forfeited his right to raise nonjurisdictional challenges (see,People v. Beattie, 80 N.Y.2d 840, 842; People v. Quattlebaum, 229 A.D.2d 729, lv denied 90 N.Y.2d 896).
As to defendant's contention that the sentence imposed on the convictions of sodomy in the first degree were illegal under Penal Law former § 70.02 (4) despite its consistency with the promised 10 to 20-year aggregate sentence, there is merit. The record reflects that in the allocution before County Court, defendant admitted to engaging in the conduct alleged in the indictment but specifically stated that the acts occurred in 1994. At that time, the minimum period of imprisonment for such class B violent felonies was fixed at one third of the maximum term. While this error could warrant a vacatur of the sentence or a remittal to County Court, we need not follow such course since the sentence on these convictions was concurrent with those imposed for defendant's other convictions. Thus, we will reduce the minimum term of the sentence imposed for the crimes of sodomy in the first degree to 6+ years — one third of the maximum 20-year term (see, People v. Davis, 195 A.D.2d 698, lv denied 82 N.Y.2d 716;People v. De Gaspard, 170 A.D.2d 835, lv denied 77 N.Y.2d 994;People v. Roseboom, 167 A.D.2d 784).
These crimes are reflected in counts 38, 44 and 50 of the indictment.
Mercure, J.P., Crew III, Spain and Graffeo, JJ., concur.
ORDERED that the judgment is modified, on the law, by reducing the sentence imposed for each of the convictions of the crime of sodomy in the first degree to a term of imprisonment of 6+ to 20 years, and, as so modified, affirmed.