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THE PLEA-BARGAINED SENTENCE WAS BELOW THE STATUTORY MINIMUM, MATTER REMITTED FOR RESENTENCING OR WITHDRAWAL OF THE PLEA AGREEMENT (FOURTH DEPT). ​

​The Fourth Department remitted the matter for resentencing because the sentence imposed was below the statutory minimum:

… [T]he sentence promised to defendant as part of his guilty plea and imposed upon him at sentencing, i.e., 8 years to life imprisonment, is illegal because it fell below the statutory minimum (see Penal Law §§ 70.08 [3] [b]; 265.03). Contrary to defendant’s contention, however, the remedy at this stage is not to vacate his guilty plea, but to remit the matter to County Court … . On remittal, the court will have the discretion to either, if possible, ” ‘resentence defendant in a manner that ensures that he receives the benefit of his sentencing bargain or permit both parties the opportunity to withdraw from the agreement’ ” … . People v Mcdowell, 2023 NY Slip Op 01606, Fourth Dept 3-24-23

Practice Point: Here the plea-bargained sentence was below the statutory minimum. The matter was remitted for resentencing (if possible) or withdrawal of the plea agreement.

 

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