         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
213
KA 09-01304
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JERMAINE MCCRIMAGER, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (J. MICHAEL MARION OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered June 11, 2009. The judgment convicted
defendant, upon his plea of guilty, of attempted criminal possession
of a controlled substance in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to
Supreme Court, Erie County, for resentencing.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted criminal possession of a
controlled substance in the third degree (Penal Law §§ 110.00, 220.16
[1]). Contrary to defendant’s contention, “the record does not
establish that Supreme Court was unaware that it had the ability to
exercise its discretion in determining whether to impose a lesser
period of postrelease supervision” (People v Tyes, 9 AD3d 899, lv
denied 3 NY3d 682; cf. People v Stanley, 309 AD2d 1254, 1254-1255).

     We agree with defendant, however, that the court failed to
apprehend the scope of its sentencing discretion in connection with
the term of imprisonment to be imposed. During the plea proceeding
conducted on February 27, 2007, the court agreed to sentence defendant
to the “minimum sentence permitted by law[,] . . . a determinate
sentence of [3½] years,” and the court informed defendant that it
could impose the maximum sentence of “nine years” in the event that
defendant violated a condition of the plea. In fact, however, the
court had the discretion pursuant to the law in effect on that date to
sentence defendant as a second felony drug offender to a determinate
term of imprisonment with a minimum of two years and a maximum of
eight years (see Penal Law § 70.70 [3] [b] [former (ii)]). After he
pleaded guilty, defendant failed to appear for sentencing and, on June
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                                                         KA 09-01304

11, 2009, the court imposed an enhanced determinate sentence of five
years imprisonment without any indication that it was aware of the
permissible sentence range for defendant’s offense at that time, which
after the amendment to Penal Law § 70.70 (3) (b) (ii) effective April
7, 2009 and applicable to defendant was a determinate term of
imprisonment with a minimum of 1½ years and a maximum of 8 years (see
L 2009, ch 56, pt AAA, §§ 23, 33 [f]). “ ‘The failure of the court to
apprehend the extent of its discretion deprived defendant of the right
to be sentenced as provided by law’ ” (People v Schafer, 19 AD3d
1133). We therefore modify the judgment by vacating the sentence, and
we remit the matter to Supreme Court for resentencing. In light of
our determination, we do not address defendant’s challenge to the
severity of the sentence.




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
