PEOPLE v. TOLBERT (1998)

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered December 4, 1996, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a term of 4 years to life, unanimously affirmed.

Defendant was lawfully sentenced to a term of 4 years to life, as a persistent violent felony offender, upon his conviction of a class E violent felony offense.   When, under former Penal Law § 70.08, the Legislature omitted any minimum term of imprisonment for a persistent violent felony offender convicted of a class E violent felony, the Court of Appeals determined that the lawful sentence in that situation was 2 years to life (People v. Green, 68 N.Y.2d 151, 506 N.Y.S.2d 298, 497 N.E.2d 665), based on the fact that the mandatory sentence for a second violent felony offender convicted of a class E violent felony was an indeterminate term of 2 to 4 years.   The 1995 amendments to the Penal Law concerning sentencing (L.1995, ch. 3), in effect at the time of the instant crime, likewise failed to specify any minimum period of imprisonment for a persistent violent felony offender convicted of a class E violent felony.   Accordingly, we apply the same analysis employed by the Green court and conclude that a defendant in this situation may now receive a sentence of 3, 31/212, or 4 years to life.   We base this conclusion on the fact that the mandatory sentence for a second violent felony offender convicted of a class E violent felony is now a determinate term of 3, 31/212, or 4 years (Penal Law § 70.04[2], [3][d] ), and we reject defendant's arguments to the contrary.   Since this defendant bargained for a sentence of 4 years to life, and 4 years to life is a lawful sentence, we see no reason to disturb that sentence.

MEMORANDUM DECISION.