PEOPLE v. JUMBE (2001)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered February 10, 1998, convicting him of arson in the fourth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is reversed, on the law, the plea is vacated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings on the indictment.

The defendant was charged with, inter alia, arson in the second degree, a class B violent felony offense (see, Penal Law §§ 70.02, 150.15).   As part of the negotiated plea agreement, the defendant was to plead guilty to attempted arson in the third degree, a class D felony offense, and receive a sentence of an indeterminate term of 2 to 4 years imprisonment.   At sentencing, over the defendant's objection, the court substituted arson in the fourth degree (see, Penal Law § 150.05) in place of attempted arson in the third degree and sentenced the defendant to an indeterminate term of 1 1/313 years to 4 years imprisonment.

The defendant's conviction of arson in the fourth degree must be vacated since that offense is a class E nonviolent felony offense, and, pursuant to CPL 220.30(3)(b)(iv), the defendant could only plead guilty to a class B, C, or D violent felony offense.   Under the circumstances, the judgment of conviction is vacated and the matter remitted to the Supreme Court, Kings County, for further proceedings on the indictment.

The defendant's remaining contentions are without merit.