Opinion
2001-04023
Submitted September 4, 2002.
September 24, 2002.
Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Feldman, J.), dated April 5, 2001, which denied his motion pursuant to CPL article 440, in effect, to vacate a judgment of the same court (Irizarry, J.), rendered July 28, 1997, convicting him of attempted criminal sale of a controlled substance in the first degree, upon his plea of guilty.
Lynn W. L. Fahey, New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GLORIA GOLDSTEIN, HOWARD MILLER, WILLIAM F. MASTRO, JJ.
ORDERED that the order is reversed, on the law, the motion is granted, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
The defendant pleaded guilty to attempted criminal sale of a controlled substance in the first degree, a class A-I felony (see Penal Law §§ 110.05; 220.43), with the understanding that he would receive a sentence of five years to life. However, a sentence of an indeterminate term of imprisonment of five years to life constitutes an illegally low sentence for a class A-I felony (see Penal Law § 70.00[a][i]). Apparently, the parties and the court were under the mistaken impression that the crime of attempted criminal sale of a controlled substance in the first degree was a class A-II felony, which would permit the imposition of the agreed-upon sentence (see Penal Law § 70.00[a][ii]). Under these circumstances, with the consent of the People, the conviction of attempted criminal sale of a controlled substance in the first degree should be reduced to attempted criminal sale of a controlled substance in the second degree to effectuate the clear purpose and intent of the plea agreement (see People v. Carter, 196 A.D.2d 633, 634; People v. Rozo, 196 A.D.2d 514, 515; People v. Laino, 186 A.D.2d 226; see also People v. Labode, 280 A.D.2d 400). Accordingly, the matter is remitted to the Supreme Court, Kings County, for that purpose.
SANTUCCI, J.P., SMITH, GOLDSTEIN, H. MILLER and MASTRO, JJ., concur.