People v. Aguilar

135 A.D.2d 480, 523 N.Y.S.2d 23, 1987 N.Y. App. Div. LEXIS 52443

Opinion

— Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered May 22, 1986, convicting defendant, after a jury trial, of robbery in the first degree and robbery in the second degree, and sentencing him to concurrent terms of AVi to 9 years for robbery in the first degree and 3 to 6 years for robbery in the second degree, unanimously modified, on the law, to reduce the concurrent sentence for robbery in the second degree to 2 to 6 years, and otherwise affirmed.

As the People concede, the sentence of 3 to 6 years imposed on defendant on his conviction for robbery in the second degree was invalid. The defendant was not a predicate felon, and his conviction under Penal Law § 160.10 (1) may not be considered an armed felony since use, possession, or display of a weapon is not an element of that crime. Accordingly, the concurrent sentence imposed on defendant on that charge must be reduced to 2 to 6 years. Concur — Sandler, J. P., Carro, Asch and Milonas, JJ.