People v Andre Lee

People v Lee 2006 NY Slip Op 02563 [28 AD3d 495] April 4, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 21, 2006

The People of the State of New York, Appellant,
v
Andre Lee, Respondent.

—[*1]

Appeal by the People from a sentence of the County Court, Rockland County (Resnik, J.), imposed June 7, 2005, upon the defendant's conviction of criminal sale of a controlled substance in the third degree, upon his plea of guilty, the sentence being a determinate term of imprisonment of one year, to be followed by a two-year period of postrelease supervision.

Ordered that sentence is reversed, on the law, and the matter is remitted to the County Court, Rockland County, for further proceedings consistent herewith.

On March 31, 2005, the defendant entered a plea of guilty to criminal sale of a controlled substance in the third degree, based on conduct which occurred on July 13, 2004. In exchange for the plea, over the People's objection, the defendant was promised that he would be sentenced under the Drug Law Reform Act (L 2004, ch 738) (hereinafter the DLRA) to a determinate term of imprisonment of one year, to be followed by a two-year period of post-release supervision. The defendant was sentenced as promised on June 7, 2005, and the People appeal.

The defendant committed the instant crime before the January 13, 2005, effective date of the DLRA. Thus, he was not entitled to be sentenced under the DLRA, and the bargained-for sentence imposed upon the defendant's conviction was illegal. The sentence therefore must be reversed (see L 2004, ch 738; Penal Law § 70.00 [2], [2] [b], [3], [3] [b]; People v Goode, 25 AD3d 723 [2006]). [*2]

Since the defendant pleaded guilty with the understanding that he would receive a sentence which was illegal, the matter is remitted to the County Court, Rockland County, to give the defendant the option of either withdrawing his plea or receiving a legal sentence (see People v Dabbs, 280 AD2d 611 [2001]; People v Ruiz, 226 AD2d 747, 748 [1996]). Florio, J.P., Santucci, Mastro and Rivera, JJ., concur.