People v. Brown

167 A.D.2d 833, 561 N.Y.S.2d 939, 1990 N.Y. App. Div. LEXIS 14368

Opinion

Judgment unanimously modified on the law and as modified affirmed, and matter remitted to Oneida County Court for resentencing, in accordance with the following memorandum: Defendant was convicted of eight counts of assault in the second degree and one count of attempted assault in the second degree, and was sentenced as a persistent violent felony offender to concurrent indeterminate terms of 10 years to life on each count. We disagree with his contention on appeal that his sentence was harsh and excessive; however, because attempted assault in the second degree is not a violent felony offense (see, Penal Law § 70.02 [1] [a]-[d]), we find sua sponte that defendant’s sentence on that count is illegal (see, Penal Law § 70.08). Thus, resentencing on that count is required.

We have examined defendant’s remaining issues on appeal, including his pro se issues, and find them to be lacking in merit. (Appeal from judgment of Oneida County Court, Buckley, J.— assault, second degree.) Present—Denman, J. P., Boomer, Pine, Balio and Lawton, JJ.