PEOPLE v. SCHAFER (2005)

 Defendant appeals from a judgment convicting him upon his plea of guilty of two counts of robbery in the second degree (Penal Law § 160.10[2] [b] ).  Contrary to the contention of defendant, his waiver of the right to appeal is valid and effective (see generally People v. Calvi, 89 N.Y.2d 868, 871, 653 N.Y.S.2d 89, 675 N.E.2d 843;  People v. Callahan, 80 N.Y.2d 273, 280, 590 N.Y.S.2d 46, 604 N.E.2d 108;  People v. Brown, 281 A.D.2d 962, 723 N.Y.S.2d 301, lv. denied 96 N.Y.2d 899, 730 N.Y.S.2d 796, 756 N.E.2d 84).   That waiver, however, does not encompass a challenge to the legality of the sentence (see People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Fehr, 303 A.D.2d 1039, 757 N.Y.S.2d 205, lv. denied 100 N.Y.2d 538, 763 N.Y.S.2d 3, 793 N.E.2d 417), nor is preservation of such a challenge required (see People v. Fuller, 57 N.Y.2d 152, 156, 455 N.Y.S.2d 253, 441 N.E.2d 563).   Supreme Court sentenced defendant as a second felony offender to concurrent determinate terms of imprisonment of seven years, stating “I have no choice, ․ that's the minimum sentence that I'm allowed to impose․” Actually, the minimum sentence that the court could have imposed was concurrent determinate terms of imprisonment of five years (see § 70.06[6] [b] ).  “The failure of the court to apprehend the extent of its discretion deprived defendant of the right to be sentenced as provided by law” (People v. Hager, 213 A.D.2d 1008, 1008, 625 N.Y.S.2d 972;  see People v. Endresz, 1 A.D.3d 888, 888-889, 767 N.Y.S.2d 732;  People v. John, 288 A.D.2d 848, 850, 732 N.Y.S.2d 505, lv. denied 97 N.Y.2d 705, 739 N.Y.S.2d 106, 765 N.E.2d 309;  People v. Woodard, 201 A.D.2d 896, 607 N.Y.S.2d 754).   We therefore modify the judgment by vacating defendant's sentence, and we remit the matter to Supreme Court for resentencing.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for resentencing.

MEMORANDUM: