Opinion
Submitted May 30, 2001
June 18, 2001.
Appeal by the defendant from a judgment of the County Court, Westchester County (Rosato, J.), rendered February 10, 1999, convicting him of burglary in the second degree, upon his plea of guilty, and sentencing him to a determinate term of seven years imprisonment.
Anne Gilleece, White Plains, N.Y., for appellant.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Valerie A. Livingston and Richard Longworth Hecht of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, P.J., WILLIAM D. FRIEDMANN, ANITA R. FLORIO, HOWARD MILLER, SANDRA L. TOWNES, JJ.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by reducing the term of imprisonment imposed from seven years to five years; as so modified, the judgment is affirmed.
During the plea proceedings, the defendant, the People, and the County Court were under the mistaken impression that the minimum sentence that could be imposed given the defendant's status as a second felony offender was a determinate term of seven years imprisonment. However, as correctly conceded by the People, the minimum permissible sentence under the circumstances is a determinate term of five years (see, Penal Law § 70.06[b]). Since the record is clear that the purpose and intent of the plea agreement was to impose the minimum permissible sentence, the term of imprisonment is reduced to a determinate term of five years (see, People v. Rozo, 196 A.D.2d 514; People v. Brown, 147 A.D.2d 489; People v. Predmore, 142 A.D.2d 759; see also, People v. LaSalle, 95 N.Y.2d 827).
The defendant's remaining contention is without merit.
BRACKEN, P.J., FRIEDMANN, FLORIO, H. MILLER and TOWNES, JJ., concur.