People v. Aybar

202 A.D.2d 600, 610 N.Y.S.2d 818

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1994
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered October 29, 1991, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed for manslaughter in the first degree; as so modified, the judgment is affirmed and the matter is remitted to the Supreme Court, Queens County, for resentencing.

The defendant contends, and the People correctly concede, that the imposition of a sentence of 12 Vi to 25 years’ imprisonment for manslaughter in the first degree was illegal and must be vacated because that crime is not an armed violent felony offense (see, Penal Law §§ 125.20, 70.02 [3], [4]). The matter is therefore remitted for resentencing.

We find the defendant’s remaining contentions are either unpreserved for appellate review or do not require reversal. Rosenblatt, J. P., Ritter, Pizzuto and Altman, JJ., concur.