People v. White

292 A.D.2d 158, 738 N.Y.S.2d 196, 2002 N.Y. App. Div. LEXIS 2278

Opinion

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered August 28, 1998, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously modified, on the law, to the extent of vacating the sentence and second violent felony offender adjudication, and substituting a term of 2V2 to 5 years, as a second felony offender, and otherwise affirmed.

As the People concede, defendant was improperly sentenced as a second violent felony offender for his conviction of criminal possession of a weapon in the third degree under Penal Law § 265.02 (1), which is not classified as a violent felony (Penal Law § 70.02 [1] [c]). We perceive no basis for a modification of sentence other than as indicated. Since defendant had a reasonable expectation of finality in the five-year term originally imposed pursuant to his plea bargain (see, People v Gilchrist, 231 AD2d 424), we reject the People’s suggestion that a sentence with a maximum term exceeding five years be imposed. Concur — Mazzarelli, J.P., Ellerin, Lemer, Rubin and Marlow, JJ.