People v. Stewart

101 A.D.2d 738

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 1984
• Status: Published

Opinion

Two judgments, Supreme Court, New York County (Gabel, J.), rendered May 3, 1982, convicting defendant, upon his pleas of guilty, of criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the third degree and sentencing him to concurrent indeterminate terms of imprisonment of from 4Yz to 9 years on each, unanimously modified, on the law, to reverse the sentence on the conviction of criminal possession of a weapon in the third degree to reduce the same to 3Vz to 7 years, and, except as thus modified, affirmed. 11 As promised, Trial Term sentenced defendant to concurrent terms of imprisonment of 4Vz to 9 years on each conviction. With commendable candor the People point out that while the sentence was proper for the conviction of criminal possession of a controlled substance in the third degree, a class B felony, a sentence of AVz to 9 years exceeded the maximum permissible sentence for criminal possession of a weapon in the third degree, a class D felony. The maximum sentence defendant could have received, as a second felony offender, for his conviction of the latter crime was an indeterminate term of from 3Vz to 7 years. (Penal Law, § 70.06, subd 3, par [d].) Since it was Trial Term’s obvious intent to sentence defendant to at least 3Vz to 7 years, we see no need for a remand for resentence and modify the sentence accordingly. 11 We have examined defendant’s arguments and find that they are without merit. Thus, except for the modification indicated, we affirm. Concur — Sullivan, J. P., Ross, Silverman and Alexander, JJ.