People v. Funchess , 624 N.Y.S.2d 837 ( 1995 )

—Appeal by the defendant from a judgment of the County Court, Westchester County (West, J.), rendered April 29, 1992, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, and unlawful possession of marijuana, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by deleting the one-year sentence that was imposed for the defendant’s conviction of unlawful possession of marijuana and substituting therefor a sentence of 15 days imprisonment to run concurrently with the sentences that were imposed for the defendant’s convictions of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree; as so modified, the judgment is affirmed.

Appellate review of the issues raised by the defendant was effectively waived by him as part of his plea agreement (see, People v Callahan, 80 NY2d 273; People v Seaberg, 74 NY2d 1).

As conceded by the People, the one-year sentence that was imposed for the defendant’s conviction of unlawful possession of marijuana is illegal (see, Penal Law § 221.05). Since the defendant has already served more than the maximum sentence that could be imposed for that crime, we are modifying the judgment to correct the error rather than remit this case to the County Court, Westchester County, for resentencing. Bracken, J. P., Balletta, Friedmann and Krausman, JJ., concur.