People v. Rivers

269 A.D.2d 836, 703 N.Y.S.2d 783

Opinion

—Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant appeals from judgments convicting him upon his pleas of guilty of grand larceny in the fourth degree (Penal Law § 155.30 [4]) (appeal No. 1) and criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]) (appeal No. 2). The certificates of conviction and the sentencing minutes indicate that defendant was not sentenced as a second felony offender. Thus, we reject defendant’s contention that Supreme Court erred in failing to comply with CPL 400.21, which outlines the procedure for determining whether a defendant is a second felony offender. At sentencing, defendant withdrew his motion to withdraw his guilty plea to criminal possession of a weapon in the third degree, and thus we do not consider his present contention that the court should have allowed him to withdraw that plea.

Defendant was sentenced to terms of imprisonment of 2 to 4 years and 21/2 to 5 years on his convictions of grand larceny in the fourth degree and criminal possession of a weapon in the third degree respectively. Because the minimum periods of imprisonment are illegal (Penal Law § 70.00 [2] [d], [e]; [3] [b]), we modify the judgments in appeals No. 1 and 2 by reducing the minimum periods of imprisonment to terms of IV3 and l2/s years respectively. (Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J. — Grand Larceny, 4th Degree.) Present — Pine, J. P., Hayes, Scudder and Lawton, JJ. [As amended by unpublished order entered May 10, 2000.]