People v. Lopez , 51 A.D.2d 809 ( 1976 )

Appeal by defendant, as limited by his brief, from a sentence of the Supreme Court, Kings County, imposed June 10, 1974, upon his conviction of criminal sale of a controlled substance in the third degree, upon his plea of guilty. Sentence affirmed. No opinion. Martuscello, Acting P. J., Christ, Titone and Hawkins, JJ., concur; Shapiro, J., dissents and votes to reverse the sentence and to remand the case to Criminal Term for resentence, with the following memorandum: In my view, from the colloquy between the sentencing court and defendant, it seems clear that the court was of the opinion that the minimum term which it could impose was five years and that it could not impose a minimum term of less than five years. Under the circumstances, defendant should be remanded for resentence.