People v. Lawson , 505 N.Y.S.2d 693 ( 1986 )

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kramer, J.), rendered November 15, 1984, convicting him of rape in the first degree, sodomy in the first degree, robbery in the first degree, and burglary in the first degree, upon a jury verdict, and sentencing him to concurrent terms of imprisonment of 12Vz to 25 years on the burglary and robbery counts to run consecutively to concurrent terms of imprisonment of 12 Vi to 25 years on the rape and sodomy counts.

Judgment modified, on the law, by reducing the minimum terms of imprisonment imposed on the burglary, rape and sodomy counts from 12 Vi years to 816 years. As so modified, judgment affirmed.

The sentencing court improperly imposed a minimum term of 12 Vi years’ imprisonment on the rape, sodomy and burglary counts. Because rape in the first degree (Penal Law § 130.35) and sodomy in the first degree (Penal Law § 130.50) are not armed violent felony offenses and because the defendant was not charged with that subdivision of burglary in the first degree which entails the display of a firearm (Penal Law § 140.30 [4]), the defendant’s minimum sentence on those counts should have been one third the maximum, or 8 Vs years’ imprisonment. The judgment is in all other respects affirmed. Niehoff, J. P., Rubin, Eiber and Kooper, JJ., concur.