Opinion
October 18, 1976
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 19, 1975, convicting him of manslaughter in the second degree, upon his plea of guilty, and sentencing him to an indeterminate prison term with a maximum of 15 years. Judgment modified, as a matter of discretion in the interest of justice, by reducing the maximum period of imprisonment to 12 years. As so modified, judgment affirmed. Upon the argument of this appeal, defendant stated that the only issue to be determined was whether the indeterminate sentence of 15 years should be reduced to 12 years. It should be. On October 22, 1974 defendant pleaded guilty to a single count of manslaughter in the first degree with a promise by the court that it would impose a maximum sentence of 12 years. On December 17, 1974, and over the objection of defense counsel, the court vacated the plea and referred the case to Part 1 to be assigned to another Judge for trial. Before the latter Judge, a plea to manslaughter in the second degree was accepted and, without an updated presentence report, defendant was sentenced to an indeterminate term with a maximum of 15 years. In our opinion defendant, upon taking a plea to a lesser crime, should not have not been given a heavier sentence than he was to receive upon his plea to the greater offense. We have therefore reduced the sentence accordingly. Hopkins, Acting P.J., Martuscello, Cohalan, Damiani and Shapiro, JJ., concur.