People v. Garcia

226 A.D.2d 229, 640 N.Y.S.2d 756, 1996 N.Y. App. Div. LEXIS 3939

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 1996
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered July 6, 1993, convicting defendant, upon his plea of guilty, of attempted murder in the second degree and three counts of attempted aggravated assault upon a police officer, and sentencing him to concurrent terms of 121/2 to 25 years on the attempted murder conviction and 4 to 8 years on the remaining convictions, unanimously modified, on the law, to the extent of reducing the minimum term to 81h years on the attempted murder conviction and 22/s years on the remaining convictions, and otherwise affirmed.

As the People concede, defendant was erroneously sentenced as an armed felon pursuant to Penal Law § 70.02 (4), since neither attempted murder in the second degree nor attempted aggravated assault upon a police officer is a class B armed felony (People v Drew, 147 AD2d 411). Accordingly, the judgment is modified to the extent of reducing the minimum terms on the convictions to one third of the respective maximum terms.

We call the attention of the New York State Legislature to the fact that the crimes involved in this case ought to be class B armed felonies so that they may consider amending the Penal Law to cover them. Concur—Sullivan, J. P., Milonas, Rosenberger, Kupferman and Nardelli, JJ.