Opinion
March 17, 1995
Appeal from the Supreme Court, Erie County, Kubiniec, J.
Present — Lawton, J.P., Fallon, Wesley, Davis and Boehm, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing in accordance with the following Memorandum: Supreme Court sentenced defendant as a second felony offender to a term of four to eight years of imprisonment, stating that the sentence was the minimum permitted. The minimum sentence for a second violent felony offender is four to eight years (Penal Law § 70.04 [b]); the minimum sentence for a second felony offender is only three to six years (Penal Law § 70.06 [c]). The failure of the court to apprehend the extent of its discretion deprived defendant of the right to be sentenced as provided by law (see, People v Moore, 212 A.D.2d 1062; People v. Woodard, 201 A.D.2d 896). Although defendant waived his right to appeal, he did not waive his right to be sentenced according to law (see, People v Seaberg, 74 N.Y.2d 1, 9; People v. Holley, 168 A.D.2d 992, 993). Because it is not apparent from the record whether the court intended to sentence defendant to a term of four to eight years, or the minimum of three to six years, we vacate the sentence and remit the matter to Supreme Court for resentencing (cf., People v. Capers, 177 A.D.2d 992, 993-994, lv denied 79 N.Y.2d 944).