Opinion
1673
September 30, 2003.
Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered February 27, 2003, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 years with 5 years of post-release supervision, unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of vacating the adjudication as a second violent felony offender and substituting an adjudication as a second felony offender, with the same sentence, and otherwise affirmed.
Lara R. Binimow, for respondent.
Salina M. Kanai, for defendant-appellant.
Before: Nardelli, J.P., Mazzarelli, Andrias, Ellerin, Marlow, JJ.
As conceded by the People, defendant was incorrectly sentenced as a second violent felony offender because his purported violent felony conviction was in fact a youthful offender adjudication. However, the sentencing record establishes that defendant's sentence was lawful in that he is a second felony offender, predicated upon a class B non-violent felony conviction in 1991. Furthermore, the sentence of five years clearly reflects the court's intent and there is no indication that the court intended to impose the lowest permissible sentence for this particularly vicious crime. In such circumstance, this Court, in the exercise of its discretion, may correct the description of a legal sentence without the necessity of a remand for resentencing (see People v. Benton, 196 A.D.2d 755, lv denied 82 N.Y.2d 891).
The record establishes that defendant made a valid waiver of his right to appeal. The waiver was carefully explained by the court and there is nothing in the record to indicate that defendant's ability to understand the proceedings, including the waiver, was impaired by mental illness. This waiver encompassed the remaining issues raised by defendant on appeal (People v. Kemp, 94 N.Y.2d 831; People v. Hidalgo, 91 N.Y.2d 733). In any event, were we to find the waiver to be invalid or inapplicable to any of these claims, we would reject them.
Motion seeking leave to file pro se supplemental brief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.