The People, etc., respondent, v. Luis M. Figueroa, also known as Louis M. Figueroa, appellant. (2011)

Submitted-February 7, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Dutchess County (Dolan, J.), rendered October 30, 2008, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed thereon;  as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Dutchess County, for further proceedings in accordance herewith.

As correctly conceded by the People, the sentence imposed by the County Court, upon the defendant's plea of guilty, was inconsistent with the sentence promised by the County Court at the plea proceeding.   The County Court had promised the defendant that he would receive, at most, a determinate sentence of 18 years of incarceration;  however, such a sentence would have been illegal (see Penal Law § 70.00[1], [3][a][i] ).   The defendant actually received a legal sentence consisting of an indeterminate term of incarceration of 18 years to life.   Accordingly, under the circumstances, the sentence imposed must be vacated, and the matter remitted to the County Court, Dutchess County, to afford the defendant the opportunity to accept the sentence that was actually imposed, or permit him to withdraw his plea of guilty (see People v. Cameron, 83 N.Y.2d 838, 840;  People v. Selikoff, 35 N.Y.2d 227, 239-240, cert denied 419 U.S. 1122;  People v. Sosa-Rodriguez, 63 AD3d 861, 863).

In light of our determination, we need not address the defendant's remaining contentions.

RIVERA, J.P., BALKIN, LEVENTHAL and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court