291 A.D.2d 580
N.Y. App. Div.
2002

Motion for reconsideration.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the motion is granted and, upon reconsideration, the decision and order dated and entered June 21, 2001 (284 AD2d 731) is amended by adding a final paragraph as follows: “It appears from the record on appeal that at the time of his plea, defendant was promised a sentence on his conviction of DWI as a D felony of a minimum term of IV2 years and a maximum term of 4 years even though the minimum sentence may not be more than one-third the maximum. However, he was sentenced on that conviction to IV2 to 41/2 years’ imprisonment. While the agreed-upon sentence could not have been properly imposed, we are of the view that since the maximum term of the sentence imposed on defendant’s conviction of DWI as a D felony exceeded the agreed-upon maximum, the sentence should be modified to a term of lVs to 4 years.”

In addition, the ordering paragraph of the decision and order is amended by substituting the following:

“Ordered that the judgment is modified, on the law, by vacating that portion of the sentence which imposed mandatory minimum fines upon defendant; matter remitted to the County Court of Ulster County for resentencing; and the sentence on defendant’s conviction of DWI as a D felony is modified by reducing the sentence imposed to a concurrent indeterminate term of IV3 to 4 years’ imprisonment; and, as so modified, affirmed.”

Mercure, J.P., Peters, Spain, Carpinello and Mugglin, JJ., concur.