PEOPLE v. LABODE

Defendant's suppression motion was properly denied. The arresting officer had probable cause to arrest defendant since he was a part of a surveillance team that investigated defendant for more than a year, and this officer was fully familiar with defendant and his drug-selling activities.

Defendant's conviction should be modified to the extent indicated "in order to effectuate the clear purpose and intent of the plea agreement" (People v. Henriquez, 188 A.D.2d 617). At the plea proceeding, both sides were under the mistaken impression that defendant was pleading guilty to a class A-II felony, when, in fact, he actually pleaded guilty to a class A-I felony. Defendant argues that this disposition of his appeal would require his consent (see, Matter of Kisloff v. Covington, 73 N.Y.2d 445) and maintains that the matter should be remanded to Supreme Court for imposition of the higher sentence that would be required for a class A-I felony, whereupon defendant would be entitled to withdraw his plea on the ground of breach of sentencing promise. However, the only manner in which the error adversely affected defendant, the only appealing party, was that he was convicted of a higher degree of offense than intended, and this Court's correction of that error "is necessary and appropriate both to rectify any injustice to the appellant resulting from the error or defect . . . and to protect the rights of the respondent." (CPL 470.20; see also, People v. Alvarez, 166 A.D.2d 603, lv denied 77 N.Y.2d 835; cf., People v. Monereau, 181 A.D.2d 918, lv denied 79 N.Y.2d 1052).

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.