Opinion
April 19, 2001.
Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered May 12, 1999, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the first degree, and sentencing him to a term of 8 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction and substituting a conviction of attempted criminal possession of a controlled substance in the second degree, and otherwise affirmed.
David Aaron, for Respondent.
Carol A. Zeldin, for Defendant-Appellant.
Before: Williams, J.P., Wallach, Lerner, Rubin, Friedman, JJ.
The parties were under the mistaken impression that defendant was pleading guilty to a class A-II felony, when, in fact, he pleaded guilty to a class A-I felony. In order to effectuate the clear purpose and intent of the plea agreement, defendant's conviction should be modified to the extent indicated (People v. Labode, 280 A.D.2d 400 [Feb 22, 2001], 2001 N.Y. App. Div. LEXIS 1737). However, defendant is not entitled to vacatur of his plea (id.; People v. Monereau, 181 A.D.2d 918, lv denied 79 N.Y.2d 1052). Defendant's plea was not induced by an unfulfilled promise; on the contrary, he received the precise sentence for which he bargained, and any question of the legality of that sentence has been rendered academic by this Court's corrective action.
Defendant's waiver of his right to appeal, which included the waiver of the right to challenge his sentence as excessive, was knowing, voluntary and intelligent. Accordingly, review of this claim is precluded (People v. Seaberg, 74 N.Y.2d 1). In any event, we perceive no basis for reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.