From Casetext: Smarter Legal Research

People v. Hager

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 17, 1995
213 A.D.2d 1008 (N.Y. App. Div. 1995)

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).


Summaries of

People v. Hager

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 17, 1995
213 A.D.2d 1008 (N.Y. App. Div. 1995)
Case details for

People v. Hager

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CURTIS HAGER, Appellant

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 17, 1995

Citations

213 A.D.2d 1008 (N.Y. App. Div. 1995)
625 N.Y.S.2d 972

Citing Cases

People v. Slattery

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of felony driving while…

People v. Schafer

. . ." Actually, the minimum sentence that the court could have imposed was concurrent determinate terms of…