The People of the State of New York, Respondent, v. Rafael Pagan, Appellant

The People of the State of New York, Respondent, v Rafael Pagan, Appellant. [MAJORITY] Appeals by defendant from (1) two judgments of the Supreme Court, Kings County (a) one rendered November 1, 1978 (Radin, J.) (Indictment No. 3431/77) convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and (b) a second rendered November 1, 1978 (Radin, J.), (Indictment No. 3432/77), as amended by a resentence imposed December 6, 1979 (Vetrano, J.), convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and (2) so much of an order of the same court dated December 6, 1979 (Vetrano, J.), as denied his motion for resentencing on his conviction of criminal sale of a controlled substance in the second degree. Judgments affirmed (see People v Gemmill, 54 AD2d 1034; People v O’Neal, 44 AD2d 830). Order modified, as a matter of discretion in the interest of justice, by granting the application for resentence as to Indictment No. 3431/77, and upon resentence, the sentence is modified to the extent of reducing the minimum period of incarceration to three years. As so modified, order affirmed insofar as appealed from. The defendant’s circumstances warrant a reduction in the minimum term of imprisonment, as it was excessive to the extent indicated. Damiani, J.P., Titone, Lazer and Gibbons, JJ., concur.