People v. Rivera

154 A.D.2d 309, 546 N.Y.S.2d 596, 1989 N.Y. App. Div. LEXIS 13612

Opinion

— Judgment, Supreme Court, New York County (Jerome Hornblass, J.), rendered September 30, 1988, convicting defendant-appellant, after a jury trial, of escape in the second degree, unanimously modified, on the law and the facts, to reduce the sentence imposed to a term of IVz to 3 years’ imprisonment, and otherwise affirmed.

Second degree escape is a class E, nonviolent felony. (Penal Law §§ 205.10, 70.02 [1] [d].) Despite Supreme Court’s clearly stated intention to sentence the defendant to the "minimum term”, the court imposed the maximum of 2 to 4 years’ imprisonment under the mistaken belief that the defendant had been convicted of a violent felony offense. Neither defense counsel nor the prosecutor called this mistake to the court’s attention. We therefore modify the sentence to reflect the court’s stated intention of sentencing the defendant to the minimum term (1½ to 3 years’ imprisonment) (see, People v Cuesta, 111 AD2d 10 [1st Dept 1985]; People v Tomasullo, 112 AD2d 960 [2d Dept 1985]).

We have reviewed the other arguments raised by the defendant on appeal and find them to be without merit. Concur— Sullivan, J. P., Carro, Asch, Rosenberger and Ellerin, JJ.