| People v Warren |
| 2010 NY Slip Op 05612 [74 AD3d 1639] |
| June 24, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Terrell A.Warren, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Thomas D. Jackson Jr. of counsel), forrespondent.
Appeal from a judgment of the County Court of Broome County (Cawley, J.), renderedMarch 4, 2009, convicting defendant upon his pleas of guilty of the crimes of attempted criminalpossession of a controlled substance in the first degree and criminal possession of a controlledsubstance in the fourth degree.
On October 2, 2006, defendant pleaded guilty to criminal possession of a controlledsubstance in the fourth degree in satisfaction of a two-count indictment in exchange for abargained-for sentence of two years with two years of postrelease supervision. Defendant wasadministered Parker warnings and released from custody. When he failed to appear forsentencing, an arrest warrant was issued.
In the fall of 2007, defendant was involved in further criminal activity resulting in an April2008 indictment for numerous drug-related offenses. As a result of further negotiations, onMarch 4, 2009, defendant pleaded guilty to attempted criminal possession of a controlledsubstance in the first degree and agreed to be sentenced as a second felony drug offender to anaggregate prison term of 10 years and postrelease supervision of five years. County Courtsentenced defendant to the agreed-upon sentences on both convictions and ran the sentencesconcurrently. Defendant now appeals.
Appellate counsel seeks to be relieved from his assignment of representing defendant on[*2]the ground that no nonfrivolous issues exist that could beraised on appeal. Upon our review of the record, however, we are required to vacate theunauthorized sentence imposed on defendant's plea to attempted criminal possession of acontrolled substance in the first degree. Defendant pleaded guilty to a class A-I felony(see Penal Law § 110.05 [1]; § 220.21) and, as a second felony drugoffender, was subject to a minimum term of imprisonment of 12 years (see Penal Law§ 70.71 [3] [b] [i]; People v Cameron, 83 NY2d 838, 840 [1994]). While this issuewas not raised by either party before the sentencing court or on appeal and the sentence asimposed favors defendant, we nevertheless must vacate the illegal sentence (see People v Warner, 69 AD3d1052, 1054 [2010]; People vDavis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).Accordingly, the sentence is vacated and the case is "remitted for resentencing with theopportunity for both parties to withdraw from the plea agreement" (People v Cameron,83 NY2d at 840). In light of this disposition, appellate counsel's motion to withdraw is academic.
Cardona, P.J., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that thejudgment is modified, on the law, by vacating the sentence imposed; matter remitted to theCounty Court of Broome County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.