Opinion
December 4, 1972
Appeal by defendant from two judgments of the Supreme Court, Queens County, both rendered March 19, 1971, on Indictment Nos. 1828/70 and 778/71, respectively, each convicting him of criminally selling a dangerous drug in the third degree, upon a plea of guilty, and imposing an indeterminate term of imprisonment of a maximum of five years, with the sentences to run concurrently. Judgment on Indictment No. 778/71 affirmed. No opinion. Judgment on Indictment No. 1828/70 modified, on the law, by reducing the maximum term of imprisonment thereunder to four years; and this sentence shall continue to run concurrently with the sentence on Indictment No. 778/71. Defendant's plea of guilty on Indictment No. 778/71 was to a class C felony. There was no mistake with respect thereto. A class C felony carries a permissible maximum of 15 years. Defendant was given a maximum sentence of five years. On Indictment No. 1828/70 defendant's guilty plea was accepted as one to "a class E felony", which has a permissible maximum of four years. The sentencing court was therefore in error when it imposed a sentence with a maximum of five years on that indictment. Rabin, P.J., Munder, Martuscello, Latham and Shapiro, JJ., concur.