Opinion
July 12, 1977
Appeal from the Onondaga Supreme Court.
Present — Cardamone, J.P., Simons, Hancock, Denman and Witmer, JJ.
Judgment, insofar as it imposes sentence, unanimously modified, as a matter of discretion, in the interest of justice, to an indeterminate sentence having a minimum of three years and a maximum of six years, and otherwise, judgment affirmed. Memorandum: Defendant was convicted of unlawfully selling .81 ounces of marijuana in violation of section 220.34 (subd 1, par [c]) of the Penal Law, a class C felony and sentenced as a second felony offender to an indeterminate sentence of imprisonment having a minimum term of four years and a maximum term of eight years. Prior to the trial he had withdrawn his earlier guilty plea to a reduced attempted possession charge, a class E felony, which the court had accepted with an indication that the minimum sentence allowable under section 70.06 Penal of the Penal Law would be imposed (an indeterminate sentence having a minimum of one and one-half years and a maximum of three years). Under all the circumstances, the sentence should be reduced in the interest of justice to the minimum permitted for a class C felony conviction under section 70.06 Penal of the Penal Law (an indeterminate sentence having a minimum of three years and a maximum of six years).