People v. Martinez

— Appeals by defendant from three judgments of the Supreme Court, Kings County (Feldman, J.), each rendered August 1, 1984, convicting him under indictment No. 2958/83 of criminal possession of a controlled substance in the first degree, under indictment No. 7400/83 of criminal sale of a controlled substance in the third degree, and under indictment No. 3306/83 of criminal sale of a controlled substance in the third degree, upon his pleas of guilty, and imposing sentences.

Judgment as to indictment No. 2958/83 modified as a matter of discretion in the interest of justice, by reducing defendant’s conviction of criminal possession of a controlled substance in the first degree to criminal possession of a controlled substance in the second degree. As so modified, judgment under indictment No. 2958/83 affirmed.

Judgments under indictments Nos. 7400/83 and 3306/83 affirmed.

Defendant entered into a plea bargain agreement whereby he agreed to plead guilty to certain crimes under three separate indictments (indictments Nos. 2958/83, 7400/83 and 3306/83) and in satisfaction of a pending Criminal Court case. It is clear from the plea minutes that it was agreed that under indictment No. 2958/83 — the top count of which was criminal possession of a controlled substance in the first degree, an A-I felony — defendant would plead guilty to an A-II felony. Further, in accordance with that agreement, the court promised to sentence defendant to a term of six years to life imprisonment, such sentence being the minimum permissible sentence upon a conviction of an A-II felony as a second felony offender (see, Penal Law § 70.06 [4] [a]). In entering his plea under indictment No. 2958/83, however, defendant pleaded guilty to the crime of criminal possession of a controlled substance in the first degree (see, Penal Law § 220.21). Thereafter, at sentencing, the court imposed a sentence of six years to life upon such conviction in accordance with the terms of the plea agreement.

We now modify that conviction, in the interest of justice and upon the request of the People, by reducing it to one of criminal possession of a controlled substance in the second degree, an A-II felony (see, Penal Law § 220.18), in order to effectuate the clear purpose and intent of the plea agreement. Further, since the sentence imposed upon defendant’s conviction under indictment No. 2958/83 of six years to life was the sentence promised and is the minimum permissible sentence which could be imposed upon defendant’s conviction, as a second felony offender, of criminal possession of a controlled substance in the second degree, there is no purpose to be served by remitting the matter for resentencing. Accordingly, we affirm the sentence.

We have examined the issues raised by defendant in his brief and find them to be either unpreserved or without merit (see, People v Pellegrino, 60 NY2d 636; People v Harris, 61 NY2d 9; People v Kazepis, 101 AD2d 816). Brown, J. P., Rubin, Lawrence and Kooper, JJ., concur.