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People v. Henriquez

Appellate Division of the Supreme Court of New York, Second Department
Dec 21, 1992
188 A.D.2d 617 (N.Y. App. Div. 1992)

Opinion

December 21, 1992

Appeal from the Supreme Court, Queens County (Chetta, J.).


Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant's conviction to attempted criminal sale of a controlled substance in the second degree; as so modified, the judgment is affirmed.

As part of a negotiated plea agreement, it was agreed that the defendant would plead guilty to attempted criminal sale of a controlled substance in the first degree and receive a sentence of eight years to life imprisonment. At the plea proceeding, the parties were under the mistaken impression that this crime is a class A-II felony when in fact it is a class A-I felony (see, Penal Law § 220.43, 110.05 Penal [1]). The promised sentence was imposed and constituted an illegally-low term of imprisonment for a class A-I felony (see, Penal Law § 70.00 [a] [i]). Under the circumstances, the judgment should be modified, in the interests of justice, by reducing the conviction to attempted criminal sale of a controlled substance in the second degree (see, Penal Law § 220.41) in order to effectuate the clear purpose and intent of the plea agreement (see, People v Laino, 186 A.D.2d 226; People v Brown, 147 A.D.2d 489; cf., People v Alvarez, 166 A.D.2d 603). Since the sentence imposed upon the defendant's plea was the sentence promised, no purpose would be served by remitting the matter for resentencing (see, People v Laino, supra; People v Brown, supra). Thompson, J.P., Lawrence, Miller, O'Brien and Ritter, JJ., concur.


Summaries of

People v. Henriquez

Appellate Division of the Supreme Court of New York, Second Department
Dec 21, 1992
188 A.D.2d 617 (N.Y. App. Div. 1992)
Case details for

People v. Henriquez

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NELSON HENRIQUEZ…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 21, 1992

Citations

188 A.D.2d 617 (N.Y. App. Div. 1992)
591 N.Y.S.2d 204

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