| People v Bennett |
| 2010 NY Slip Op 02682 [72 AD3d 1124] |
| April 1, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Karee Bennett, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Schenectady County (Drago, J.),rendered November 8, 2007, convicting defendant upon his plea of guilty of the crime ofattempted criminal possession of a controlled substance in the third degree.
In 2007, in satisfaction of a six-count indictment, defendant pleaded guilty to attemptedcriminal possession of a controlled substance in the third degree, a class C felony (seePenal Law §§ 110.00, 110.05, 220.16 [1]). In accord with the plea agreement,County Court sentenced him as a nonviolent second felony offender to a prison term of threeyears, to be executed as a parole supervision sentence, thus allowing for his participation in adrug treatment program. Defendant appeals.
The sentence imposed was not authorized by law. At the time of the plea and sentencing,defendant's conviction for a class C felony did not qualify for a disposition of parole supervision(see Penal Law former § 70.70 [3] [b] [i]; [d]; CPL former 410.91 [5]).[FN*]We are [*2]required to vacate the sentence, notwithstanding thePeople's argument that the error favored defendant (see People v Cameron, 83 NY2d838, 840 [1994]). "[T]his [C]ourt cannot permit a sentence which is invalid as a matter of law tostand" (People v Peale, 122 AD2d 353, 354 [1986]; see CPL 470.15 [2] [c];People v Gustafson, 101 AD2d 920, 921 [1984]). Further, as the error affected thesentence both as promised at the time of the plea and as later imposed, it rendered the pleainvoluntary, and defendant must be allowed the opportunity to withdraw his plea and stand trial(see People v Cameron, 83 NY2d at 840; People v Selikoff, 35 NY2d 227,239-240 [1974], cert denied 419 US 1122 [1975]; People v Gustafson, 101AD2d at 921). In light of this disposition, it is unnecessary to address defendant's remainingcontentions.
Cardona, P.J., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofSchenectady County for further proceedings not inconsistent with this Court's decision; and, asso modified, affirmed.
Footnote *: CPL 410.91 was amended in2009 to include a class C controlled substance felony offense as a specified offense eligible forparole supervision (see L 2009, ch 56, part AAA, § 8).