Opinion
May 9, 1996
Appeal from the Supreme Court, New York County (Antonio Brandveen, J.).
The People concede that the negotiated plea was intended to result in a prison sentence of 5 to 10 years; that while the court and counsel referred to the pled-to crime of attempted second-degree criminal possession of a controlled substance as a class B felony, in fact it is an A-II felony; and that reduction of the conviction to third-degree criminal possession of a controlled substance, a class B felony, as requested by defendant, would give effect to the parties' intent ( see, People v. Carter, 196 A.D.2d 633). We note that a sentence of 5 to 10 years for a second felony offender is not legal for an A-II felony but is legal for a B felony (Penal Law § 70.06 [a], [b]; [4] [a], [b]), and that a defendant charged with an A-II felony is allowed to plead guilty to a B felony (CPL 220.10 [a] [ii]).
Concur — Murphy, P.J., Sullivan, Rosenberger, Nardelli and Tom, JJ.