PEOPLE v. NASH (2008)

Appeals by the defendant from two judgments of the County Court, SuffolkCounty (Crecca, J.), both rendered June 17, 2005, convicting him of criminal possession of stolen property in the fourth degree under Suffolk County Indictment No. 2838-04 and burglary in the third degree under Suffolk County Indictment No. 988-05, upon his pleas of guilty, and sentencing him to indeterminate terms of imprisonment of 2 to 4 years on the conviction of criminal possession of stolen property in the fourth degree and 2 1/212 to 5 years on the conviction of burglary in the third degree, to run concurrently with each other.

ORDERED that the judgment rendered under Suffolk County Indictment No. 988-05 is affirmed;  and it is further,

ORDERED that the judgment rendered under Suffolk County Indictment No. 2838-04 is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed on the conviction of criminal possession of stolen property in the fourth degree from an indeterminate term of 2 to 4 years imprisonment to an indeterminate term of 1 1/212 to 3 years imprisonment;  as so modified, the judgment is affirmed.

The plea minutes reveal that the defendant pleaded guilty to criminal possession of stolen property in the fourth degree under Suffolk County Indictment No. 2838-04 in exchange for a promised sentence of 1 1/212 to 3 years imprisonment.   However, at the time of sentencing, the court erroneously imposed a sentence of 2 to 4 years, and the mistake went unnoticed by the court, the prosecutor, and defense counsel.   Under these circumstances, as the People correctly concede, the sentence imposed under Indictment No. 2838-04 should be reduced to conform to the promise made to the defendant in exchange for his plea of guilty (see People v. Allen, 170 A.D.2d 686, 567 N.Y.S.2d 99;  see also People v. Virola, 203 A.D.2d 164, 610 N.Y.S.2d 788;  People v. Bright, 194 A.D.2d 479, 599 N.Y.S.2d 968).