PEOPLE v. BIBEAU (2007)

Appeal from a judgment of the County Court of Ulster County (Feeney, J.), rendered January 4, 2006, convicting defendant upon her plea of guilty of the crime of criminal sale of a controlled substance in the third degree.

In satisfaction of a three-count indictment charging various drug-related crimes, defendant pleaded guilty to criminal sale of a controlled substance in the third degree with the understanding that if she failed to successfully complete a drug treatment court program, she would be sentenced to 2 1/ 21 2 to 7 years in prison.   She thereafter failed to complete the program and, as a result, County Court sentenced her to a prison term of 2 1/212 to 7 years.   This appeal by defendant ensued.

Defendant argues, and the People concede, that the sentence of 2 1/212 to 7 years is illegal.   Based upon our review of the record and Penal Law § 70.00(1) and (3)(b), as it read in November 2003 when defendant committed her crime, we agree.   The sentence imposed was impermissible inasmuch as the minimum period of imprisonment was greater than one third of the maximum (see Penal Law former § 70.00[1];  [3][b] ).  Accordingly, the sentence must be vacated and the matter remitted to County Court for resentencing.   In light of our disposition, we need not address defendant's remaining claim that the sentence was harsh and excessive.

ORDERED that the judgment is modified, on the law, by reversing so much thereof as imposed a sentence of imprisonment of 2 1/212 to 7 years upon defendant's conviction of the crime of criminal sale of a controlled substance in the third degree;  said sentence vacated and matter remitted to the County Court of Ulster County for resentencing;  and, as so modified, affirmed.

CARPINELLO, J.

MERCURE, J.P., ROSE, LAHTINEN and KANE, JJ., concur.