People v. Miller

127 A.D.2d 540, 511 N.Y.S.2d 778, 1987 N.Y. App. Div. LEXIS 43009

Opinion

Appeals from the judgments of the Supreme Court, New York County (Robert M. Haft, J.), rendered January 8, 1985, convicting the defendants, after a joint jury trial, of armed robbery in the first and second degrees and sentencing them each as second felony offenders to concurrent indeterminate terms of 6 to 12 and 4 to 8 years, are held in abeyance and the matter remanded to the sentencing court for clarification as to the sentence to be imposed for the crime of robbery in the first degree.

Because it was indicated to the sentencing court that the minimum permitted by law for the crime of robbery in the first degree was six years for these second felony offenders, when they were actually eligible, not being second violent felony offenders, for minimum sentences of AV¿ years (Penal Law § 70.06 [3] [b]; [4]), the People properly consent to a remand for clarification and resentencing. (See, People v Thureson, 84 AD2d 736.)

The court in its discretion may actually have intended the sentence to be a minimum of six years, and we do not suggest any interference with this discretion.

We have examined the other points on appeal and find them without merit. Concur — Kupferman. J. P., Sullivan, Ross, Milonas and Kassal, JJ.