People v. Perkins

123 A.D.2d 582, 507 N.Y.S.2d 600, 1986 N.Y. App. Div. LEXIS 60725

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1986
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Bernstein, J.), rendered March 29, 1985, convicting defendant, after a jury trial, of criminal possession of a weapon in the second degree and assault in the second degree, and sentencing him as a second violent felony offender to concurrent indeterminate terms of imprisonment of 5 to 10 years, modified, on the law, to vacate the indeterminate sentence of 5 to 10 years imposed upon the defendant’s conviction for assault in the second degree, and the matter is remanded for resentencing on that count.

As the People acknowledge, the maximum sentence authorized by law on a conviction of assault in the second degree as a violent felony offender is seven years. (See, Penal Law § 70.04 [3] [c].) Accordingly, the concurrent indeterminate sentence of 5 to 10 years imposed on defendant on his conviction for assault in the second degree was unauthorized and must be vacated, and the matter remanded for resentencing.

We have considered the other issues presented on defendant’s behalf on this appeal and are satisfied that the jury’s verdict was adequately supported by the evidence, and that the trial was not affected by any error of law that would support a reversal. Concur—Sandler, J. P., Asch, Lynch, Kassal and Ellerin, JJ.