PEOPLE v. RICKETT (1999)

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered May 21, 1997, convicting him of burglary in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing definite sentences of imprisonment of 15 years for his conviction of burglary in the second degree and 7 years for his conviction of criminal of possession of a weapon in the third degree.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed on the defendant's conviction of criminal possession of a weapon in the third degree and substituting therefor an indeterminate sentence of 3 1/2 to 7 years imprisonment;  as so modified, the judgment is affirmed.

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5] ).

 The court did not err in denying the defendant's request to charge criminal trespass in the second degree as a lesser-included offense of burglary in the second degree (see, Penal Law §§ 140.15, 140.25).   Although criminal trespass in the second degree is a proper lesser-included offense of burglary in the second degree, i.e., it is theoretically impossible to commit the greater offense without concomitantly committing the lesser (see, People v. Peyton, 244 A.D.2d 976, 665 N.Y.S.2d 218), there is no reasonable view of the evidence at bar to support a finding that the defendant committed the lesser offense but not the greater (see, People v. Scarborough, 49 N.Y.2d 364, 368, 426 N.Y.S.2d 224, 402 N.E.2d 1127).

 As the People correctly concede, the seven-year definite sentence imposed for his conviction of criminal possession of a weapon in the third degree is illegal, since the weapons charge was not a violent felony offense (see, Penal Law § 265.02[1] ).   Accordingly, since the record clearly indicates the trial court's intention to impose a maximum sentence (see, Penal Law § 70.04[3][c] ), we hereby modify the sentence for that conviction to an indeterminate term of imprisonment of 3 1/2 to 7 years (see, Penal Law § 70.02 [1][c], § 70.06[4][b];  People v. Sellers, 113 A.D.2d 850, 493 N.Y.S.2d 586).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.