People v. Serrano

Judgment, Supreme Court, New York County (Eugene L. Nardelli, J.), rendered November 30, 1981, convicting defendant, following a jury trial, on indictment No. 224/81, of robbery in the first and second degrees, criminal use of a firearm in the first and second degrees, attempted robbery in the first degree and criminal possession of a weapon in the second degree and sentencing him to two terms of from 8 Vs to 25 years on the convictions for robbery in the first degree and criminal use of a firearm in the first degree and four terms of 5 to 15 years on each of the other counts, all to run concurrently, unanimously affirmed.

Judgment (same court), rendered November 30, 1981, convicting defendant following a jury trial on indictment No. 225/81, of robbery in the first degree and criminal use of a firearm in the first degree and sentencing him to two concurrent terms of 8 Vs to 25 years, to run consecutively to the sentences imposed under indictment No. 224/81, unanimously affirmed.

Judgment (same court), rendered November 30, 1981, convicting defendant following a jury trial on indictment No. 1566/80, of attempted murder in the second degree and criminal possession of a weapon in the second degree and sentencing him to concurrent terms of 12 Vz to 25 years on the attempted murder count and 5 to 15 years on the weapons possession count, to run consecutively with the sentences imposed under indictments Nos. 224/81 and 225/81, unanimously modified, on the law, to the extent of reversing the sentence on the attempted murder in the second degree count and imposing a sentence of 8 Vs to 25 years and, except as so modified, is otherwise affirmed.

The District Attorney concedes that defendant’s sentence of 12 Vi to 25 years on his conviction for attempted murder in the second degree, a class B violent felony offense, was illegal. (See, People v Gonzalez, 99 AD2d 1001; Penal Law § 70.02 [4].) Penal Law § 70.02 (4) provides that the minimum period of imprisonment that may be imposed for a violent felony offense cannot exceed one third of the maximum, unless the sentence is for a conviction for a class B armed felony offense, in which case the court may impose a minimum of up to one half of the maximum. Attempted murder in the second degree is not an armed felony offense since neither the possession nor the display of a gun is an element of the crime. (Penal Law § 125.25.) While defendant’s use of a shotgun was a factual element of the crime, it was not a statutory element. Inasmuch as the court obviously intended to sentence defendant to the maximum term allowable, we find a remand for resentence unnecessary and we modify the sentence accordingly. (See, People v Gonzalez, supra.) We have examined the remaining arguments advanced by appellant and find them lacking in merit. Concur—Sullivan, J. P., Carro, Asch, Kassal and Rosenberger, JJ.