People v. Hager

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing in accordance with the following Memorandum: Supreme Court sentenced defendant as a second felony offender to a term of four to eight years of imprisonment, stating that the sentence was the minimum permitted. The minimum sentence for a second violent felony offender is four to eight years (Penal Law § 70.04 [3] [b]); the minimum sentence for a second felony offender is only three to six years (Penal Law § 70.06 [3] [c]). The failure of the court to apprehend the extent of its discretion deprived defendant of the right to be sentenced as provided by law (see, People v Moore, 212 AD2d 1062 ; People v Woodard, 201 AD2d 896 ). Although defendant waived his right to appeal, he did not waive his right to be sentenced according to law (see, People v Seaberg, 74 NY2d 1 , 9; People v Holley, 168 AD2d 992 , 993). Because it is not apparent from the record whether the court intended to sentence defendant to a term of four to eight years, or the minimum of three to six years, we vacate the sentence and remit the matter to Su