Opinion
No. 2006-04853.
May 29, 2007.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Holdman, J.), imposed April 21, 2006, upon his conviction of criminal possession of a weapon in the third degree, upon his plea of guilty, the sentence being a determinate term of imprisonment of five years.
Lynn W. L. Fahey, New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel; Sean Maraynes on the memorandum).
Before: Prudenti, P.J., Rivera, Goldstein, Dillon and McCarthy, JJ., concur.
Ordered that the sentence is modified, as a matter of discretion in the interest of justice, by reducing the determinate term of imprisonment of five years imposed upon the defendant's conviction to time served.
The defendant was incorrectly informed that his right to appeal did not include the right of appellate review of his sentence on the ground that it was excessive, and therefore the purported waiver of his right to appeal cannot be considered "knowing, voluntary, and intelligent" ( People v Brown, 13 AD3d 548, 549; see People v Caleb C, 32 AD3d 543; People v Hale, 30 AD3d 613, 614; People v Borgwin, 23 AD3d 491; People v Rolon, 220 AD2d 543).
Under the particular facts of this case, including the defendant's background as well as the People's recommendation that the defendant receive a more lenient sentence, and the People's position on appeal that the sentence imposed was excessive, we find it appropriate to exercise our discretion in the interest of justice to modify the sentence by reducing the term of imprisonment imposed to the time already served by the defendant ( see People v Suitte, 90 AD2d 80).