Opinion
June 2, 1986
Appeal from the Supreme Court, Kings County (Broomer, J.).
Judgment modified, on the law, by vacating the sentence imposed on the conviction of criminal sale of a controlled substance in the third degree. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Kings County, for resentencing on that conviction.
The sentence of 4 1/2 to 12 years, which the sentence minutes indicate was imposed by Criminal Term on the defendant's conviction of criminal sale of a controlled substance in the third degree, is not a permissible sentence for the defendant, a second felony offender convicted of a class B felony (see, Penal Law § 70.06). It is apparent from the record that the court may have misspoken in rendering this sentence and that it may have intended to impose the minimum sentence permitted, 4 1/2 to 9 years. The order of commitment in fact states that such a sentence was imposed. In view of this discrepancy, we cannot determine what sentence the court intended and therefore the sentence in question must be vacated and the matter remitted to Criminal Term for resentencing on that charge (see, People v Ortiz, 116 A.D.2d 598; People v. Aponte, 110 A.D.2d 901). Lazer, J.P., Bracken, Brown, Lawrence and Kooper, JJ., concur.