PEOPLE v. BRYANT (2000)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Carroll, J.), rendered March 11, 1998, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and sentencing him to an indeterminate term of five years to life imprisonment.

ORDERED that the judgment is modified, on the law, by reducing the sentence from an indeterminate term of five years to life imprisonment to an indeterminate term of four years to life imprisonment;  as so modified, the judgment is affirmed.

 As correctly conceded by the People, the Supreme Court erred in imposing a minimum term of five years imprisonment.   The defendant was convicted of a class E violent felony.   Penal Law § 70.08 governs the sentencing of a defendant adjudicated a persistent violent felony offender, and mandates a maximum term of life imprisonment.   The statute is silent, however, as to the permissible minimum term for a class E persistent violent felony offender.   Under such circumstances, it is proper to impose, as the minimum term of imprisonment, the permissible determinate sentence for class E second violent felony offenders (see, People v. Tolbert, 93 N.Y.2d 86, 688 N.Y.S.2d 105, 710 N.E.2d 669;  People v. Green, 68 N.Y.2d 151, 506 N.Y.S.2d 298, 497 N.E.2d 665).   For a second violent felony offender who has been convicted of a class E felony, Penal Law § 70.04(3)(d) authorizes a determinate sentence of imprisonment not in excess of four years.   Accordingly, the defendant's minimum term of imprisonment should be reduced from five years to four years.

 The sentence, as modified, is not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

MEMORANDUM BY THE COURT.