People v. Dixon

52 A.D.2d 1090, 384 N.Y.S.2d 314, 1976 N.Y. App. Div. LEXIS 13030

Opinion

Judgment unanimously modified, on the law, to vacate the sentence on the weapon count and, in lieu thereof, impose sentence of one year to run concurrently with the sentence imposed on the robbery count, and as modified affirmed. Memorandum: There is no merit to defendant’s claim that section 60.03 of the Penal Law is unconstitutional (see People v Le Clair, 47 AD2d 679). With commendable candor the Assistant District Attorney, however, has acknowledged that because there was no proof that defendant was previously convicted of any crime, his offense of unlawful possession of a knife constituted a class A misdemeanor (Penal Law, § 265.05, subd 9), and that the maximum sentence therefor is one year (Penal Law, § 70.15, subd 1). The indeterminate sentence not to exceed three years imposed on that count was, therefore, illegal, and a one-year sentence is appropriate. (Appeal from judgment of Erie Supreme Court convicting defendant of robbery, second degree and possession of a weapon.) Present— Marsh, P. J., Moule, Simons, Goldman and Witmer, JJ.