PEOPLE v. VELAZQUEZ (2009)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.), rendered July 17, 2006, convicting him of burglary in the third degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing an indeterminate sentence of 15 years to life imprisonment on each count, to run concurrently with each other.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the adjudication of the defendant as a persistent felony offender, adjudicating him a second felony offender, and reducing his sentences from an indeterminate term of 15 years to life imprisonment to an indeterminate term of 3 1/212 to 7 years of imprisonment on the count of burglary in the third degree and from an indeterminate term of 15 years to life imprisonment to an indeterminate term of 3 1/212 to 7 years of imprisonment on the count of criminal possession of a weapon in the third degree, to run concurrently with each other.

The totality of the evidence adduced at the persistent felony offender hearing, although warranting the defendant's adjudication as a second felony offender, did not warrant his adjudication as a persistent felony offender (see Penal Law § 70.10[2];  People v. Greene, 57 A.D.3d 1004, ----, 871 N.Y.S.2d 323 [2d Dept. 2008] ).   Accordingly, we reduce the sentences imposed for burglary in the third degree and criminal possession of a weapon in the third degree-both class D felonies-to concurrent indeterminate terms of imprisonment of 3 1/212 to 7 years, which is the maximum permissible sentence for a second felony offender convicted of those crimes (see Penal Law § 70.06[3] [d] ).

The defendant's remaining contentions are without merit, do not require reversal, or need not be reached in light of our determination.