PEOPLE v. DONHAUSER (2007)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. David DONHAUSER, Defendant-Appellant. (Appeal No. 2.)

Decided: February 02, 2007

PRESENT: GORSKI, J.P., FAHEY, PERADOTTO, GREEN, AND PINE, JJ.

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Barbara J. Davies of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him upon his plea of guilty of one count each of burglary in the second degree (Penal Law § 140.25[1][a] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ), and two counts of burglary in the third degree (§ 140.20). Contrary to defendant's contention, the sentence is not unduly harsh or severe. We conclude, however, that County Court erred in sentencing defendant as a second violent felony offender to a determinate term of imprisonment on the count of criminal possession of a weapon in the third degree under subdivision (1) of Penal Law § 265.02 because that crime is not a violent felony offense (see § 70.02[1][c] ). Rather, defendant should have been sentenced as a second felony offender to an indeterminate term of imprisonment on that count (see § 70.06[3][d]; [4][b] ). We therefore modify the judgment by vacating the sentence imposed for criminal possession of a weapon in the third degree, and we remit the matter to County Court for resentencing on count two of the superior court information.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence imposed for criminal possession of a weapon in the third degree and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing on count two of the superior court information.

MEMORANDUM:

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