People v. Hulsen , 444 N.Y.S.2d 651 ( 1981 )

Judgment, Supreme Court, New York County (G. Roberts, J., at plea; B. Altman, J., at sentence), rendered July 25, 1980, convicting defendant of attempted robbery in the second degree, upon his plea of guilty, and sentencing him to a term of imprisonment of from two and one-half to five years, modified, to the extent of vacating the sentence and remanding for resentence, and, otherwise, affirmed. At the time of the taking of the plea, the court was of the impression that defendant’s prior felony conviction was for a violent felony. Accordingly, it promised to impose a sentence of two and one-half to five years, the minimum permissible for a class D second violent felony offender (Penal Law, § 70.04, subd 3, par [c]; subd 4). In fact, defendant’s prior felony conviction had been for a felony and not for a violent felony. At the time of sentence, the sentencing court imposed the promised term of imprisonment. Since defendant was sentenced under a misapprehension, the sentence must be vacated and defendant remanded for resentence. In so doing we pass no opinion on the propriety of the sentence imposed or to be imposed. We note merely that defendant is entitled to be sentenced in accordance with the law applicable to his case. Concur — Sandler, J. P., Sullivan, Carro, Markewich and Bloom, JJ.