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

The PEOPLE of the State of New York, Respondent, v. Jarees JOHNSON, Defendant-Appellant.

Decided: March 27, 2009

PRESENT:  HURLBUTT, J.P., MARTOCHE, CENTRA, PERADOTTO, AND GORSKI, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Kristin M. Preve of Counsel), for Defendant-Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

Defendant appeals from a judgment convicting him, upon his plea of guilty, of criminal possession of a weapon in the third degree (Penal Law § 265.02[3] ) and sentencing him to an indeterminate term of incarceration of two to four years.   As defendant contends, and the People correctly concede, the sentence is illegal.   Defendant was convicted of a class D nonviolent felony offense and thus the minimum term should have been no more than one third of the maximum term imposed, i.e., 1 1/313 years (see § 70.00[3][b] ).  We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing (see People v. Adams, 45 A.D.3d 1346, 845 N.Y.S.2d 593;  People v. Fingland, 273 A.D.2d 925, 711 N.Y.S.2d 808).   Because the illegal sentence requires that the case be remitted, we need not address defendant's further contention concerning the sentence.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for resentencing.


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