| People v Lee |
| 2009 NY Slip Op 05821 [64 AD3d 1236] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Paul Lee,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Alex R. Renzi, J.), rendered April 19,2006. The judgment convicted defendant, upon his plea of guilty, of criminal possession of aweapon in the third 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 toMonroe County Court for further proceedings in accordance with the following memorandum:Defendant appeals from a judgment convicting him upon his plea of guilty of criminalpossession of a weapon in the third degree (Penal Law § 265.02 [1]). Inasmuch asdefendant was sentenced as a second felony offender, the People correctly concede that thesentence is illegal insofar as County Court ordered the sentence to run concurrently with a priorundischarged sentence (see § 70.25 [former (2-a)]; People ex rel. Gill v Greene, 12 NY3d1, 6 [2009]; People v Ingoglia, 305 AD2d 1002, 1003 [2003], lv denied 100NY2d 583 [2003]). The People contend, however, that defendant is receiving the benefit of hisplea bargain because the Department of Correctional Services has not corrected the error, anddefendant therefore should not be permitted to challenge the legality of the sentence. We rejectthat contention, in view of the well settled principle that " 'we cannot allow an [illegal] sentenceto stand' " (People v Davis, 37AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]). Thus, we modify thejudgment by vacating the sentence, and we remit the matter to County Court to afford defendantthe opportunity to withdraw his plea or to be resentenced as a second felony offender incompliance with Penal Law § 70.25 (former [2-a]) (see People v Ciccarelli, 32 AD3d 1175 [2006]; Ingoglia,305 AD2d at 1003). Present—Scudder, P.J., Hurlbutt, Martoche, Smith and Centra, JJ.