Opinion
June 19, 1986
Appeal from the Supreme Court, New York County, Preminger, J.
Defendant Thomas Wilkerson was adjudicated a second violent felony offender following his plea of guilty to three counts of attempted robbery in the first degree, a class C felony, in full satisfaction of two indictments. The court sentenced him to concurrent terms of from 9 to 18 years' imprisonment on each count. Penal Law § 70.04 (3) (b); (4) authorize punishment no higher than a minimum sentence of 7 1/2 years and a maximum sentence of 15 years' imprisonment for second violent felony offenders convicted of committing a class C felony. It is clear from the plea minutes that the court intended to sentence defendant to the maximum term of imprisonment for a second violent felony offender on each second degree robbery conviction, and imposed sentences higher than authorized. The indorsements on the worksheet for the subject indictments reflect the sentence was "on each count, concurrently". Under these circumstances, the sentencing error is reviewable, notwithstanding defendant's failure to challenge the legality of his sentence at the trial level (People v. Fuller, 57 N.Y.2d 152), and his agreement to the promised sentence when he tendered his guilty plea (People v. Drummond, 40 N.Y.2d 990). Since a remand is unnecessary, we do not reach the prosecutor's contention, in reliance upon United States v. Pisani ( 787 F.2d 71 [2d Cir]), that, on remand, the court should be allowed the option of altering the sentence to impose consecutive sentences that would total 9 to 18 years.
Concur — Murphy, P.J., Ross, Rosenberger, Ellerin and Wallach, JJ.