Opinion
September 14, 1995
Appeal from the County Court of Ulster County (Vogt, J.).
Defendant pleaded guilty to criminal possession of a controlled substance in the third degree in full satisfaction of a four-count indictment. Defense counsel seeks to be relieved of her assignment of representing defendant on appeal on the basis that there are no nonfrivolous issues to be raised. We agree. A review of the records and briefs in this case, including the arguments raised by defendant in her pro se brief, reveal that there are no nonfrivolous issues which could be raised and therefore defense counsel's application to withdraw should be granted.
We do note, however, that during the plea proceedings the People recommended and defendant accepted that she be sentenced as a second felony offender to an indeterminate prison term of 4 1/2 to 9 years. The People repeated the terms of the promise at the outset of the sentence proceedings. At sentencing, however, County Court imposed a term of 4 to 9 years. All indications in the record support the conclusion that the court merely misspoke and intended the sentence to be the sentence proffered by the People and defendant ( see, People v Brown, 205 A.D.2d 854, lv denied 84 N.Y.2d 866). In fact, by statute the recommended sentence of 4 1/2 to 9 years was the most lenient sentence possible (Penal Law § 70.06 [b]). In view of the clear indication by the court to impose that sentence, remitting the matter for resentencing would be pointless ( see, People v Pizzano, 127 A.D.2d 858). We therefore modify the judgment accordingly.
Cardona, P.J., Crew III, White, Peters and Spain, JJ., concur. Ordered that the judgment is modified, on the law, by vacating so much thereof as sentenced defendant to 4 to 9 years' imprisonment; defendant is sentenced to 4 1/2 to 9 years' imprisonment; and, as so modified, affirmed, and application to be relieved of assignment granted.