| People v Lewis |
| 2007 NY Slip Op 08135 [45 AD3d 898] |
| November 1, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Phillip Lewis,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Crew III, J. Appeals (1) from a judgment of the County Court of Albany County (Herrick, J.),rendered June 30, 2003, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a weapon in the third degree, and (2) by permission, from an order of saidcourt, entered February 3, 2006, which denied defendant's motion pursuant to CPL 440.20 to setaside the sentence, without a hearing.
Defendant was indicted and charged with criminal possession of a weapon in the thirddegree. Pursuant to a plea bargain, defendant pleaded guilty to attempted criminal possession of aweapon in the third degree with the understanding that he would be sentenced, as a persistentviolent felony offender, to the minimum available sentence of four years to life. Following entryof the plea, it was discovered that defendant was not a persistent violent felony offender but,rather, a second violent felony offender. Consequently, County Court sentenced defendant to aprison term of four years, the maximum sentence available for a second violent felony offender,together with five years of postrelease supervision. Defendant thereafter moved, pursuant to CPL440.20, to set aside his sentence. County Court denied that motion without a hearing, anddefendant now appeals from the judgment of conviction and the denial of his CPL article 440motion.[*2]
It is axiomatic that where, as here, a sentencing court isunable to honor its sentencing commitment, thus depriving the defendant of the benefit of his orher plea bargain, the defendant should be afforded the opportunity to withdraw his or her plea(see e.g. People v Torres, 45 NY2d 751, 753 [1978]; People v Varnum, 291AD2d 724, 725 [2002]). Accordingly, we reverse the judgment of conviction and remit thismatter for that purpose.
Cardona, P.J., Mercure, Carpinello and Kane, JJ., concur. Ordered that the judgment andorder are reversed, on the law, and matter remitted to the County Court of Albany County forfurther proceedings not inconsistent with this Court's decision.