People v. Moye ( 2003 )

Appeal from a judgment of Supreme Court, Erie County (Tills, J.), entered March 16, 2001, which revoked defendant’s probation and imposed a sentence of imprisonment.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for resentencing.

Memorandum: Defendant admitted to a violation of probation and was sentenced to a determinate term of imprisonment of three years upon her underlying conviction of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [2]), a class D violent felony offense (§ 70.02 [1] [c]). At the time defendant committed the crime in August 1998, however, Penal Law § 70.00 (former [1]) required the imposition of an indeterminate sentence under these circumstances, with the minimum period of imprisonment fixed at one half of the maximum term (see § 70.00 [former (3) (b)]; § 70.02 [former (4)]). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court, Erie County, for resentencing. Present — Pigott, Jr., P.J., Green, Gorski, Lawton and Hayes, JJ.