People v. Gilchrist

Sep 17, 1996
Versions:231 A.D.2d 424
647 N.Y.S.2d 77
1996 N.Y. App. Div. LEXIS 9335

Judgment, Supreme Court, New York County (Edwin Torres, J.), rendered January 31, 1996, resentencing defendant to a term of 5 to 15 years, upon his plea of guilty to attempted robbery in the first degree, unanimously modified, on the law, to reduce the sentence to 3 1/2 to 10 years, and otherwise affirmed.

Defendant, who was improperly sentenced as a second violent felony offender to a term of 5 to 10 years (People v Gilchrist, 223 AD2d 382), was improperly resentenced, as a first-time felony offender, to a term of 5 to 15 years. Defendant had a reasonable expectation of finality in the 10-year maximum term originally imposed pursuant to his plea bargain (see, Stewart v Scully, 925 F2d 58; People v Hoppie, 220 AD2d 528; cf., People v Spears, 228 AD2d 193), and the minimum period of imprisonment for a first-time attempted first-degree robbery offender at the time the instant offense was committed was one-third of the maximum term (Penal Law § 70.02 [1] [b]; [2] [a]; [former (4)]). Inasmuch as the 15-year maximum term imposed by the sentencing court shows that it would not, if given another opportunity to sentence, impose a maximum term of less than 10 years, we modify the resentence to 31/s to 10 years. Concur—Murphy, P. J., Rosenberger, Wallach, Kupferman and Nardelli, JJ.