September 26, 2013
The People of the State of New York, Respondent,
Barry Smith, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), for respondent.
Gonzalez, P.J., Mazzarelli, Acosta, Renwick, JJ.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered September 12, 2011, as amended January 10, 2012, convicting defendant, upon his plea of guilty, of burglary in the first degree, and sentencing him to a term of five years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the conviction to burglary in the second degree and reducing the prison term to 3½ years, and otherwise affirmed. As the People concede, defendant's conviction and sentence should be modified as indicated for the purpose of effectuating the plea bargain agreed upon by the parties and the court (see e.g. People v Colon, 301 A.D.2d 408 [1st Dept 2003]). We have considered defendant's remaining arguments and find that they do not warrant any relief except as indicated.