People v. Gibbons

—Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant was convicted upon his plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25) and grand larceny in the third degree (Penal Law § 155.35). County Court sentenced defendant to indeterminate terms of IV2 to 4V2 years’ imprisonment on each count, to run concurrently. Immediately thereafter, the court changed the sentence imposed for the attempted burglary count to 2 to 4 years, stating that, because the minimum must be one half of the maximum, the minimum sentence permissible for the offense was 2 to 4 years. When defendant committed the underlying crime in August 1998, it was required that an indeterminate sentence be imposed for a class D violent felony with a maximum range of 3 to 7 years (see, Penal Law § 70.00 [2] [d]) and a minimum range of one half of the maximum (see, Penal Law § 70.02 [4]; People v Correa, 248 AD2d 630, 631, affd 93 NY2d 821); therefore, the minimum permissible sentence was IV2 to 3 years. Although we conclude that the sentence is neither unduly harsh nor severe, the record reflects that the court intended to impose the minimum sentence; therefore, we modify the judgment as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]) by reducing the sentence imposed for attempted burglary in the second degree to IV2 to 3 years’ imprisonment.

The court erred in continuing the order of protection until November 16, 2007. An order of protection shall not exceed the greater of five years from the date of the conviction or three years from the date of the expiration of the maximum term of imprisonment imposed (see, CPL 530.13 [4]). Therefore, the order of protection must be amended to provide for an expiration date of May 18, 2006 (see, People v Nunez, 267 AD2d 1050). (Appeal from Judgment of Genesee County Court, Noonan, J. — Attempted Burglary, 2nd Degree.) Present — Hayes, J. P., Hurlbutt, Scudder and Kehoe, JJ.