People v. Flores

222 A.D.2d 450, 635 N.Y.S.2d 37, 1995 N.Y. App. Div. LEXIS 12512

Opinion

—Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Hanophy, J.), imposed February 24, 1994, upon his conviction of robbery in the first degree, upon his plea of guilty, the sentence being 121h to 25 years imprisonment.

Ordered that the sentence is modified, on the law, by reducing the minimum term of imprisonment to 81/2 years; as so modified, the sentence is affirmed.

The defendant contends, and the People concede, that the court erroneously imposed a sentence of 121/2 to 25 years imprisonment rather than a sentence of 81/2 to 25 years imprisonment. The defendant pleaded guilty to robbery in the first degree pursuant to subdivision (1) of Penal Law § 160.15 under count three of the indictment, a crime which is not an "armed felony” since neither the possession nor the display of a gun is a statutory element thereof (CPL 1.20 [41]; People v Seifert, 173 AD2d 655; People v Ulses, 132 AD2d 584). Accordingly, the minimum term of imprisonment should have been one-third, rather than one-half, of the maximum (see, Penal Law § 70.00 [3]; § 70.02 [4]; § 70.04 [4]; People v Pena, 192 AD2d 728). Mangano, P. J., Sullivan, Balletta, Santucci and Krausman, JJ.