Opinion
Argued November 16, 2000
January 11, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered June 22, 1999, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Marybeth Ayres of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, ACTING P.J., MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN, WILLIAM D. FRIEDMANN, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, the plea of guilty is vacated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.
We agree with the defendant that he should be permitted to withdraw his plea because "[t]he record demonstrates that the defendant's plea was entered into upon the mistaken belief of the court and the parties that the Division of Parole possessed the discretion to run any undischarged sentence concurrently with the negotiated sentence imposed in this case", when, in fact, the terms are required to run consecutively (People v. Scott, 237 A.D.2d 543, 544; see also, People v. Lowman, 237 A.D.2d 621). Although this issue was not preserved for appellate review, we reach it in the exercise of our interest of justice jurisdiction (see, CPL 470.15).