People v. Minnis

101 A.D.2d 739

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 1984
• Status: Published

Opinion

Judgment, Supreme Court, New York County (G. Roberts, J.), rendered May 5,1981, convicting defendant, after jury trial, of burglary in the first degree, and criminal possession of a weapon in the third degree, and sentencing him thereon, is unanimously modified, on the law, by changing the conviction of criminal possession of a weapon in the third degree to conviction of criminal possession of a weapon in the fourth degree, and sentencing him thereon to a term of imprisonment of one year, to run concurrently with the sentence on the burglary count, and the judgment is otherwise affirmed, f As the District Attorney concedes, the conviction of criminal possession of a weapon in the third degree must be reduced as requested by appellant to a class A misdemeanor of criminal possession of a weapon in the fourth degree because of the failure of the People to introduce evidence at the trial of defendant’s previous convictions. (See Penal Law, § 265.02, subd IT]; 265.01; CPL 470.15, subd 2, par [a].) 11 The Trial Judge imposed a sentence of imprisonment of 3Vz to 7 years on the conviction of possession of a weapon in the third degree, a class D felony. It is thus apparent that the Trial Judge intended to impose the maximum penalty permitted by law for this crime. The maximum permissible sentence for the class A misdemeanor of criminal possession of a weapon in the fourth degree (Penal Law, § 265.01) is imprisonment for one year. Defendant has already served a longer period than that. Accordingly, no useful purpose would be served by remitting the matter to the trial court for resentence, and instead, we impose the sentence of one year for the crime of criminal possession of a weapon in the fourth degree, to run concurrently with the sentence on the burglary count. 1i The other claims of error, some of them not timely objected to in the trial court, do not warrant interference with the judgment. (People v Ivory, 99 AD2d 154.) Concur — Kupferman, J. P., Asch, Silverman, Milonas and Alexander, JJ.