People v. Rivera

111 A.D.2d 71, 489 N.Y.S.2d 197, 1985 N.Y. App. Div. LEXIS 51209

Opinion

Judgment, Supreme Court, New York County (Thomas Galligan, J., and a jury), rendered on December 3,1981, convicting defendant of manslaughter in the first degree, two counts of attempted murder in the second degree and assault in the first degree and imposing concurrent sentences of 12V2 to 25 years’ imprisonment on the manslaughter and attempted murder counts and 5 to 15 years’ imprisonment on the assault count, modified, on the law, so as to reduce the minimum term of imprisonment imposed on the manslaughter and attempted murder convictions from 12V2 years to 8Vs years, and, as so modified and reduced, affirmed.

Possession of a deadly weapon or display of a firearm is not an element of either manslaughter in the first degree or attempted murder in the second degree. Consequently neither crime is an armed felony offense as defined by CPL 1.20 (41) and the imposition of a minimum term of imprisonment of one half the maximum term of 25 years pursuant to Penal Law § 70.02 (4) was illegal. (See, People v Lawrence, 97 AD2d 718.) The minimum term of imprisonment under an indeterminate sentence for a class B violent felony cannot exceed one third of the maximum term imposed. We therefore modify the judgment so as to impose minimum terms of 8Va years’ imprisonment on the manslaughter and attempted murder convictions. Concur — Murphy, P. J., Sullivan, Bloom, Milonas and Ellerin, JJ.