People v. Rhodes , 484 N.Y.S.2d 539 ( 1985 )

— Judgment of the Supreme Court, Bronx County (Florio, J.), rendered on February 3, 1983, convicting defendant, upon his plea of guilty, of manslaughter in the first degree and sentencing him to an indeterminate term of imprisonment of from AVa to 10 years, is modified, on the law, to the extent of reducing defendant’s sentence to from 3Va to 10 years’ imprisonment, and otherwise affirmed.

Defendant, following extensive plea negotiations, entered an Alford plea (North Carolina v Alford, 400 US 25) to manslaughter in the first degree in full satisfaction of the charges contained in the indictment. He took this action with the express promise that he would be sentenced to a maximum of 10 years and a minimum of from 3 to 5 years and that this term would run concurrently with the sentence received under a prior Bronx County indictment. The court, after taking into consideration the presentence report and other relevant factors, imposed a term of imprisonment of from AV2 to 10 years, noting that the minimum was “more than one-third the maximum because [the court] is authorized to do so, since the manslaughter one * * * is an armed violent felony.” However, as defendant correctly contends and the People concede, the sentence should be reduced to 3Va to 10 years in accordance with subdivision 4 of section 70.02 of the Penal Law. The permissible period of incarceration for a first felony offender convicted of a violent felony offense is, with the exception of a class B armed felony offense, one third of the maximum. In People v Gonzalez (99 AD2d 1001), this court held that manslaughter in the first degree is not an armed violent felony offense in that neither the possession nor display of a gun constitutes an element of the crime. The trial court, therefore, was under a misapprehension that manslaughter in the first degree was an armed violent felony offense when it improperly sentenced defendant to a minimum term of imprisonment which was more than one third of the maximum. Concur — Ross, J. P., Carro, Fein, Milonas and Alexander, JJ.