| People v Largen |
| 2008 NY Slip Op 02666 [49 AD3d 1347] |
| March 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v NicholasLargen, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedNovember 2, 2006. The judgment convicted defendant, upon his plea of guilty, of robbery in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toErie County Court for resentencing.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofrobbery in the second degree (Penal Law § 160.10 [2] [b]). The record establishes that,based upon the understanding that defendant was to be sentenced as a second violent felonyoffender, County Court agreed to sentence defendant to a term of incarceration of seven years,which is the minimum determinate sentence for a second violent felony offender convicted of aclass C violent felony offense (see § 70.04 [3] [b]). At sentencing, however, thePeople failed to establish that defendant was a second violent felony offender, and the courtsentenced defendant to a determinate term of incarceration of seven years pursuant to Penal Law§ 70.02 (3) (b), which sets forth the permissible sentencing range for a class C violentfelony offense. The minimum sentence under that statute is 3½ years, and the Peoplecorrectly concede that the record fails to establish whether the court was aware of the extent of itsdiscretion when it sentenced defendant to the agreed-upon term of incarceration despite the factthat the People failed to establish that he was a second violent felony offender (see generally People v Schafer, 19AD3d 1133 [2005]; People v Hager, 213 AD2d 1008 [1995]; People vWoodard, 201 AD2d 896 [1994]). We therefore modify the judgment by vacating thesentence, and we remit the matter to County Court for resentencing. We have considereddefendant's remaining contentions and conclude that they are without merit.Present—Martoche, J.P., Smith, Peradotto, Pine and Gorski, JJ.