People v. Lucas

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Erie County Court for resentencing in accordance with the following Memo*884randum: The People agree with defendant that County Court unlawfully sentenced him to an indeterminate term of incarceration of 6 to 12 years on his conviction of burglary in the first degree, a class B violent felony. Defendant was not convicted of an armed felony, and the applicable statute in effect at the time he committed the offense (January 2, 1995) required that the minimum term of imprisonment be no more than one third of the maximum (see, Penal Law § 70.02 [former (4)]). We reject the contention of defendant that he did not intelligently, knowingly and voluntarily waive his right to appeal. Although that waiver encompasses the right of defendant to challenge the excessiveness of his sentence (see, People v Allen, 82 NY2d 761), it does not encompass his right to challenge the lawfulness of the sentence (see, People v Seaberg, 74 NY2d 1, 9). Thus, we modify the judgment by vacating the sentence and remitting the matter to Erie County Court for resentencing. (Appeal from Judgment of Erie County Court, DiTullio, J. — Burglary, 1st Degree.)