People v. Mcfarland , 762 N.Y.S.2d 324 ( 2003 )

—Appeal from a judgment of Supreme Court, Erie County (Burns, J.), entered December 23, 1997, convicting defendant upon his plea of guilty of sexual abuse in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the minimum period of imprisonment to 2x/3 years and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree, a class D violent felony, and sentencing him to an indeterminate term of imprisonment of 3V2 to 7 years. As the People correctly concede, the sentence is illegal, and the minimum period of imprisonment should be reduced to 2x/3 years. At the time the offense was committed in 1993, Penal Law § 70.02 (former [4]) required that the minimum period of imprisonment be fixed at one third of the maximum term imposed (see People v Trimm, 252 AD2d 673, 675 [1998], lv denied 92 NY2d 931 [1998]). We therefore modify the judgment by reducing the minimum period of imprisonment to 2x/s years. Present — Pigott, Jr., P.J., Green, Pine, Wisner and Lawton, JJ.