Opinion
February 11, 1999.
Appeal, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered March 23, 1998, which (1) reversed, on the law, an order of the Supreme Court (Victor M. Ort, J.; opn 172 Misc 2d 650), entered in Nassau County, denying a motion by the People of the State of New York to set aside as unauthorized by law a sentence imposed on defendant of one to three years imprisionment upon a judgment convicting defendant, upon his pleas of guilty, of attempted burglary in the second degree, (2) granted the motion, (3) vacated the sentence, and (4) remitted the matter to Supreme Court.
The defendant was charged with burglary in the second degree and grand larceny in the third degree. After his trial ended in a hung jury, the defendant pleaded guilty to attempted burglary in the second degree, a class D violent felony, in exchange for a promised sentence of one to three years imprisonment. The People subsequently moved to set aside the negotiated term on the ground that Penal Law § 70.02 (4), as amended by the Sentencing Reform Act of 1995 (L 1995, ch 3, § 4), required the minimum term of the defendant's sentence to be fixed at one-half of the maximum period because attempted burglary in the second degree is a violent felony offense.
The Supreme Court denied the People's motion, but the Appellate Division reversed, concluding that an examination of the legislative history of the Sentencing Reform Act of 1995 revealed that it was intended to increase sentences for all classes of violent felons by requiring that a first-time violent felon who is sentenced to State prision must receive a minimum term that is one-half of the maximum; that the change in the sentencing scheme is implemented by Penal Law § 70.02 (4), which, as amended, clearly and unambiguously provides that "[t]he minimum period of imprisionment under an indeterminate sentence for a violent felony offense must be fixed by the court at one-half of the maximum term imposed", and that the sentencing court was, therefore, not authorized to fix the minimum period of the defendant's indeterminiate sentence at one-third of the maximum term imposed.
People v Correa, 248 AD2d 630, affirmed.
Victor M. Levy, Hempstead, Kent V. Moston and Mattthew Muraskin for appellant.
Dennis Dillon, District Attroney of Nassau County, Mineola (Margaret E. Mainusch and Peter A. Weinsein of counsel), for respondent.
Order affirmed. For the reasons stated by the Appellate Division ( 248 A.D.2d 630), defendant's sentence was correctly vacated and the matter remitted for further proceedings to Supreme Court. Defendant's remaining contentions are either unreviewable or without merit. Chief Judge Kaye and Judges Bellacosa, Smith, Ciparick, Wesley and Rosenblatt concur. Judge Levine took no part.