
    The People of the State of New York, Appellant, v. Hector Lopez and Roberto Lopez, Also Known as Robert Lopez, Respondents.
    Argued December 10, 1970;
    decided March 3, 1971.
    
      Frank S. Hogan, District Attorney (Lewis R. Friedman, Michael R. Juviler and William G. Donnino of counsel), for appellant.
    A defendant having pleaded guilty to attempted possession of a weapon and petit larceny cannot complain of the consecutive sentences imposed. (People ex rel. Maurer v. Jackson, 2 N Y 2d 259; People v. Baker, 27 A D 2d 269, 19 N Y 2d 982; People v. Guy 33 A D 2d 806; People v. Nelson, 32 A D 2d 952; People v. Foster, 19 N Y 2d 150; People v. Griffin 7 N Y 2d 511; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People v. Legacy, 4 A D 2d 454; Matter of Simonson v. Cahn, 27 N Y 2d 1; People ex rel. Battista v. Christian, 249 N. Y. 314.)
    
      Albert L. Richter for Roberto Lopez and Emma Alden Rothblatt and Stephen H. Peskin for Hector Lopez, respondents.
    The cumulative sentence of two years received by each defendant is illegal under section 70.25 (subd. 3) of the Penal Law. (People v. Guy, 33 A D 2d 806; People v. Nelson, 32 A D 2d 952; People ex rel. Harris v. Maher, 61 Misc 2d 691; People ex rel. Fitzgerald v. Maher, 61 Misc 2d 22.)
   Gibson, J.

The issue arises upon the People’s contention that sentences for consecutive terms in excess of the periods permitted by the applicable statute were imposed pursuant to a plea bargain and were valid as proper subjects of the plea-bargaining process. In unanimously reversing the judgments of conviction, the Appellate Division correctly held that the two crimes of which each defendant was convicted ‘ ‘ were committed as parts of a single * * * transaction” (Penal Law, § 70.25, subd. 3); the statute cited further providing that when, in such case, consecutive definite sentences of imprisonment are imposed, “the aggregate of the terms of such sentences shall not exceed one year.”

The defendants were jointly indicted for robbery in the first degree, petit larceny and possessing a weapon, dangerous instrument and appliance as a felony (Penal Law, §§ 160.15, 155.25, 265.05). Each pleaded guilty to petit larceny, which was the second count, and to the class E felony of attempted possession of a weapon, under the third count, such pleas being accepted in satisfaction of the indictment and of certain related burglary charges which had not been included in the indictment. Upon the recommendation of the prosecutor that an alternative definite sentence be imposed for the class E felony (Penal Law, § 70.05), the court sentenced each defendant to a one-year term on that count and to. a like term on the misdemeanor count and directed that the sentences be served consecutively. Had the alternative method not been employed, the conviction of the class E felony would have rendered defendants subject to indeterminate sentences of from one to four years (Penal Law, § 70.00). Instead, the definite one-year sentence was imposed.

It appeared from admissions made by defendants at the time of sentence that in the course of the commission of the larceny one defendant was armed with a stiletto and the other with an opened pocket knife. Thus the attempted possession of weapons, of which defendants were convicted, and the petit larceny in their conceded taking of $25, were parts of a single transaction, a conclusion with which appellant ‘ ‘ does not disagree ’ ’; and hence consecutive sentences were within the proscription of subdivision 3 of section 70.25. This conclusion, too, remains undisputed.

The People contend, however, that the defendants- waived the provisions of subdivision 3, pursuant to a plea bargain — a claim that the record does not support and defendants decline to concede. Indeed, the only indication of any previous discussion is to be found in the remarks of the Trial Judge immediately prior to the imposition of sentence. He said: “ We had a discussion at the Bench before this plea was entered, and one of the main considerations in taking the pleas that were taken and coming to a conclusion concerning the disposition from the sentence basis was the fact that the complainants in this case were about ninety years old, and we didn’t want to subject them to bringing them to Court, with the possible strain and anxiety that might entail. As a result of that and on the recommendation of the district attorney, the sentence of the Court as to each defendant is: * * Here there is a reference to sentence ; but certainly no implication of an agreement and waiver in respect of sentence is to be found in these words; and, differing from the case of a so-called hypothetical crime where the guilty plea serves, at one and the same time, to formulate the offense and to waive objection to any seeming inconsistency, a plea of guilt tendered in a case such as this could not logically or reasonably be deemed to waive any infirmity or invalidity in a sentence to be imposed some time in future. Assuming, nevertheless, that a defendant can effectively waive the mandatory provisions of subdivision 3, whether as an incident to a plea bargain or otherwise, it is clear that in this case, no waiver has been demonstrated.

It seems to us advisable, however, to reach the broader issue as to the permissibility, in general, of a plea bargain designed to vitiate the provisions of subdivision 3; and we turn to that question. Asserting that such an arrangement can properly be made, the People rely principally on the analogy they profess to find in our decision in People v. Foster (19 N Y 2d 150). There we sustained a conviction, upon a plea of guilty, of attempted manslaughter, as against the contention that no such crime could exist, inasmuch as an attempted crime of necessity requires intent while manslaughter by definition excludes it. We held in an opinion by Judge Scileppi (p. 154) that the plea should be sustained on the ground that it was sought by defendant and freely taken as part of a bargain which was struck for the defendant’s benefit and, as supportive of our decision, we cited and explicitly approved the rationale of People v. Griffin (7 N Y 2d 511). In that case, Judge Van Voorhis, writing for the court, pointed to the distinction between a plea of guilty to a lesser crime, which does not admit the facts that he is guilty or not guilty of the crime therein charged, and a plea of guilty to a lesser crime, which does not admit the facts charged in the indictment (Code Crim. Pro., § 334, subd. 2); the defendant simply ‘ pleads guilty to something else ’ ’, that is, to the crime, hypothetical or not, specified in the plea itself; the plea in such case referring to the indictment only in respect of ‘ ‘ the time, place and intended victim ’ ’ described therein (p. 515). Quite unlike the case before us, wherein an explicit mandatory sentencing statute was contravened, the plea to a lesser offense, including a hypothetical offense, is “ authorized by statute ”, as Judge Van Yoorhis was careful to point out, and in particular by sections 334 and 342-a of the Code of Criminal Procedure (p. 516).

In the statute before us nothing could be more clear and explicit than the imperative: ‘ ‘ the aggregate of the terms of such sentences shall not exceed one year ” (Penal Law, § 70.25, subd. 3). Surely a Judge, a prosecutor and a defendant cannot by agreement restructure substantive law to fit their notion of what is more appropriate in a particular case. If, in cases such as this, the legal scheme of punishment is not sufficiently flexible, the remedy lies with the Legislature.

The orders should be affirmed.

Jasen, J. (dissenting).

On this appeal we are confronted with an important issue involving a plea of guilty and the sentencing process, to wit: whether a defendant, as part of his plea bargaining, may waive the application of section 70.25 (subd. 3) of the Penal Law.

The minutes of plea and sentence lead inescapably to the conclusion that prior to the entry of the plea, the court and experienced defense counsel had discussed the possible imposition of the consecutive sentences aggregating two years. Indeed, the guilty pleas to both crimes could have had no other purpose except to permit the imposition of the consecutive sentences. For example, a plea by the defendants to attempted possession of a weapon, as a class E felony, by itself, would have allowed an indeterminate State prison sentence of one to four years. (Penal Law, § 70.00, subds. 1, 2, par. [e]; subd. 3; § 70.20, subd. 1.) A plea to a class E felony would not authorize a definite sentence of two years, and the additional guilty plea to petit larceny, a misdemeanor, could not result in the imposition of a different sentence unless consecutive definite sentences were being considered. Hence, the pleas here permitted the defendants to be sentenced to two years in a local jail, instead of a State prison (Penal Law, § 70.20, subd. 2), a result not attainable under any other guilty plea. Concluding, as I do, that the defendants waived section 70.25 (subd. 3), the question then arises as to whether this is permissible.

On its face, section 70.25 (subd. 3), couched in mandatory language, does not seem to permit the exercise of discretion by the court in imposing consecutive sentences for offenses committed as part of a single incident. As Judge Lehman observed: ‘ There may be cases where special circumstances are present which would lead a wise judge to believe that less severe punishment would better fit the crimes committed. A judge may fit the punishment to the crime only where the law leaves room for the exercise of discretion in a particular case # . * # When by act of Legislature the law provides that particular acts shall have definite consequences, there is no room for the exercise of discretion by the court or judge.” (People v. Gowasky, 244 N. Y. 451, 467 [concurring in part, dissenting in part].)

However, contrary to the majority’s holding, I do not believe the mandatory language of section 70.25 (subd. 3) is dispositive of the matter. I would hold that an accused may knowingly and intelligently waive a statutory right which was enacted for his own protection. As we noted in an analogous situation, when reviewing a conviction, upon a guilty plea to attempted manslaughter, an impossible crime: ‘1 The defendant declined to risk his chances with a jury. He induced the proceeding of which he now complains. He made no objection or complaint when asked in the presence of his counsel whether he had any legal cause to show why judgment should not be pronounced against him, and judgment was thereafter pronounced. As a result, the range of sentence which the court could impose was cut in half—a substantial benefit to defendant.” (People v. Foster, 19 N Y 2d 150, 153.)

In my view, the Legislature, in deciding to limit consecutive definite sentences to a one-year maximum, had intended to protect a criminal defendant against overcharging by a prosecutor — that is, to avoid the possible aggregation of sentences for those convicted after trial. Notwithstanding its mandatory language, I do not believe that the statute was ever intended to defeat a defendant’s right to waive its protection in order to receive a substantial benefit such as by reducing a potential sentence, and preventing the use of a felony as a predicate for recidivist treatment. (Penal Law, § 70.10, subd. 1, par. [b], cl. [i].) The one-year limit on authorized consecutive sen-fences is certainly not ‘ a public fundamental right, the exercise of which is requisite to jurisdiction * * * [which] is binding upon the individual and cannot be disregarded by him.” (Matter of Simonson v. Cahn, 27 N Y 2d 1, 3-4; People ex rel. Battista v. Christian, 249 N. Y. 314, 318.) To hold that an accused may not knowingly and intelligently waive a rule which was made for his own protection is totally unreasonable. Where is the harm to the accused in such case f The State has extended-]/ a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind which affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.” (Brady v. United States, 397 U. S. 742, 753.)

In view of criminal court congestion and delays in trials, sound public policy would require that we encourage defendants to openly and freely enter guilty pleas, with the presence of counsel, accompanied by a reduction of the scope of possible punishment, provided the imposition of the sentences is realistically related to the facts of the case. The majority’s position is not only contrary to this approach, but also to the trend of recent decisions in which the courts have extended every effort to sustain freely and voluntarily entered pleas of guilty. (North Carolina v. Alford, 400 U. S. 25; McMann v. Richardson, 397 U. S. 759; Brady v. United States, 397 U. S. 742, supra; People v. Irizarry, 27 N Y 2d 856; People v. Reyes, 26 N Y 2d 97; People v. Foster, 19 N Y 2d 150, supra.)

As in the situation where a defendant pleads guilty to a fictitious crime, the defendants were clearly benefited in being sentenced for the class E felony pursuant to section 70.05 of the Penal Law, authorizing a definite sentence of imprisonment, instead of section 70.00, requiring the imposition of an indeterminate sentence. But now, by a majority’s holding, the District Attorney, in similar cases, will insist on a felony plea with an indeterminate sentence to be imposed pursuant to section 70.00 of the Penal Law, thereby, most likely, requiring a trial, which, in turn, will result in taxing even more our already overcrowded and congested courts. Considering that approximately 96% of all convictions iii our Supreme and County Courts are brought about by pleas of guilty, I am convinced that our decision will place an unreasonable obstacle in the plea bargaining process.

I conclude, therefore, the sentences “ should be sustained on the ground that [they were] sought by defendant[s] and freely taken as part of a bargain which was struck for the [defendants ’] benefit.” (People v. Foster, supra, at p. 154.)

Chief Judge Fuld and Judges Burke and Bergan concur with Judge Gibson; Judge Jasen dissents and votes to reverse in a separate opinion in which Judges Scileppi and Breitel concur.

Orders affirmed. 
      
      . The imposition of that sentence, having the effect of a misdemeanor sentence, barred the use of the felony as a predicate for recidivist treatment (Penal Law, § 70.10, subd. 1, par. [b], el. [i]); but the sentence had to be limited to one year; and it is inferable from the prosecutor’s argument here, although not from the record, that it was considered that this punishment was too light and that it could not be increased except by imposition of an additional, consecutive term of one year upon the petit larceny plea.
     
      
      . Robbery in the first degree, a class B felony, is punishable by a maximum term of 25 years. (Penal Law, § 70.00, subd. 2, par. [b]; § 70.20, subd. 1; § 160.15.)
     
      
      . Cf. Brady v. United States (397 U. S. 742, 751-753), in which the Supreme Court in holding that a plea of guilty entered to limit the possible punishment was not for that reason compelled within the meaning of the Fifth Amendment, implicitly recognized that the resources of the criminal justice system would be severely overburdened if guilty pleas based on the expectation of a lesser penalty were forbidden.
     
      
      . The imposition of a one-year sentence of imprisonment had the effect of a misdemeanor sentence, which barred the use of the felony as a predicate for recidivist treatment. (Penal Law, § 70.10, subd. 1, par. [b], cl. [i].)
     
      
      . Sixteenth Annual Report of N. Y. Judicial Conference, 1971, p. A 96, Table 30.
     