People v. Napolitano

157 A.D.2d 675, 550 N.Y.S.2d 850, 1990 N.Y. App. Div. LEXIS 234

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 1990
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Beldock, J.), rendered January 5, 1988, convicting him of robbery in the first degree, upon a jury verdict, and sentencing him to an indeterminate term of 8 Vi to 17 years’ imprisonment.

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance with Penal Law § 70.06.

The defendant was convicted of the crime of robbery in the first degree, which is a class B felony (see, Penal Law § 160.15). As a second felony offender, he faced a possible sentence ranging from a minimum of 4 Vi to 9 years, to a maximum of 12 Vi to 25 years (Penal Law §§70.06 [3] [b]; [4] [b]). During sentencing, the court erroneously stated that "[t]he sentence for this crime is in the area from the minimum of 6 to 12 and a maximum of 12 Vi to 25”, and thereupon imposed a sentence of from 8 Vi to 17 years’ imprisonment. Since the court erroneously interpreted the law with respect to the permissible range of sentences available to it, we deem it appropriate to vacate the sentence imposed and remit for resentencing. In so remitting this matter for resentencing, we do not pass upon the propriety of the sentence originally imposed.

We have reviewed the defendant’s remaining argument and find it to be unpreserved for appellate review for the most part (see, People v Medina, 53 NY2d 951, 953), and, in any event, without merit (see, People v Galloway, 54 NY2d 396; People v Glenn, 140 AD2d 623). Mangano, J. P., Bracken, Sullivan and Balletta, JJ., concur.