People v. Ramirez

154 A.D.2d 288, 547 N.Y.S.2d 219, 1989 N.Y. App. Div. LEXIS 13401

Opinion

— Judgment of the Supreme Court, New York County (James J. Leif, J.), rendered June 26, 1987, which convicted defendant, upon his plea of guilty, of robbery in the first degree and criminal possession of a weapon in the second degree, and sentenced him to concurrent terms of imprisonment of from 316 to 7 years on both counts, unanimously modified, on the law, to reduce the sentence imposed on the weapons count to from 216 to 7 years, and is otherwise affirmed.

Criminal possession of a weapon in the second degree (Penal Law § 265.03) is a class C violent felony offense (Penal Law "§ 70.02 [1] [b]) for which a minimum period of imprisonment must be fixed at one third of the maximum period imposed (Penal Law § 70.02 [4]) absent any prior felony convictions. Accordingly, as the People acknowledge, a minimum period of one third, not one half, of the maximum term imposed should have been fixed.

We have considered defendant’s other arguments, that his sentence was unduly harsh and that the $100 surcharge mandated by Penal Law § 60.35 (1) (a) should have been waived, and find them without merit. Concur — Murphy, P. J., Sullivan, Ross, Asch and Wallach, JJ.