People v. Rivera

192 A.D.2d 364, 596 N.Y.S.2d 681, 1993 N.Y. App. Div. LEXIS 3509

Opinion

—Judgment, Supreme Court, Bronx County (John P. Collins, J.), rendered April 11, 1991, convicting defendant, upon his plea of guilty, of three counts of burglary in the first degree, rape in the first degree and attempted burglary in the third degree, and sentencing him to two concurrent terms of 7 to 14 years and one consecutive term of 7 to 14 years on the burglary counts, and to concurrent terms of 4 to 12 years on the rape count and lVá to 4 years on the attempted burglary count, unanimously modified, on the law, to the extent of reducing the minimum term imposed for the burglary conviction under count 24 from 7 years to 4% years, and otherwise affirmed.

As the People concede, the sentence imposed for the burglary conviction under count 24 was not legally permissible since, committed as it was with a knife, it did not constitute an armed felony offense (CPL 1.20 [41]). Accordingly, the minimum term of imprisonment should have been one third, not one half, of the maximum term (Penal Law § 70.02 [4]; People v Drew, 147 AD2d 411). Concur — Sullivan, J. P., Carro, Ellerin and Rubin, JJ.