Opinion
July 16, 1993
Appeal from the Supreme Court, Erie County, Kasler, J.
Present — Denman, P.J., Pine, Lawton, Boomer and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant was convicted in 1985 of attempted criminal possession of stolen property in the first degree upon a plea of guilty and sentenced as a second felony offender to 1 1/2 to 3 years incarceration. In 1992, Supreme Court granted defendant's motion to be resentenced pursuant to CPL 440.20 on the ground that defendant had been improperly sentenced as a second felony offender and he was resentenced to one to three years incarceration. The court denied his motion to vacate the judgment of conviction pursuant to CPL 440.10, rejecting defendant's argument that he entered the plea of guilty based on his attorney's erroneous statement that he was a second felony offender.
Defendant argues for the first time on appeal that his conviction of attempted criminal possession of stolen property in the first degree is invalid and that his sentence of one to three years is illegal. He argues that the statutes pertaining to possession of stolen property were amended effective November 1, 1986 and that the offense of which he was convicted is attempted criminal possession of stolen property in the fourth degree, a class A misdemeanor. Because defendant was resentenced after the ameliorative amendment, he is entitled to the benefit of the new law (see, People v. Behlog, 74 N.Y.2d 237, 240). Because defendant has a right to be sentenced "as provided by law" (People v Fuller, 57 N.Y.2d 152, 156), preservation of this issue is not required. Defendant has served more than one year and it therefore is appropriate for this Court to resentence him to a determinate term of one year (see, People v. Davey, 193 A.D.2d 1108). The judgment of Supreme Court accordingly is modified by reducing defendant's conviction to attempted criminal possession of stolen property in the fourth degree, vacating defendant's sentence, and sentencing defendant to a determinate term of incarceration of one year.