PEOPLE v. YANT (1998)

Appeal by the defendant from an amended judgment of the County Court, Dutchess County (Dolan, J.), rendered December 4, 1996, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the amended judgment is affirmed.

In People v. Yant, 223 A.D.2d 747, 637 N.Y.S.2d 468, this court vacated the sentence imposed upon the appellant and remitted the matter to the County Court, Dutchess County, for resentencing based on the misapprehension by the court regarding its discretion under Penal Law § 70.25(4) to impose concurrent sentences.   However, upon resentencing, the court improperly imposed a sentence which was lower than the minimum sentence authorized by law.   The People thereafter timely moved pursuant to CPL 440.40(1) to set aside the sentence.   The People's motion was granted, and the defendant was then sentenced to the minimum authorized sentence.   We reject the defendant's contention that he should again be sentenced to the sentence imposed at the first resentencing.   Since the defendant received the minimum sentence authorized by law, and since the sentence imposed was less than that originally promised as part of the plea agreement, the defendant has no basis to complain (see, People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351).

MEMORANDUM BY THE COURT.