PEOPLE v. STATON

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

The PEOPLE, etc., Respondent, v. Maurice STATON, Appellant.

Decided: September 29, 1997

Before MANGANO, P.J., and BRACKEN, COPERTINO, SULLIVAN and McGINITY, JJ. Daniel L. Greenberg, New York City (Joanne Legano Ross, of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens (Robin A. Forshaw and Lisa Drury, of counsel;  Lori Goodwin, on the brief), for respondent.

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Thomas, J.), imposed November 14, 1995, upon his conviction of attempted murder in the second degree, attempted robbery in the first degree (two counts), assault in the first degree (two counts), and criminal possession of a weapon in the fourth degree, the sentence being indeterminate terms of 6 to 12 years imprisonment for attempted murder in the second degree and 4 to 12 years imprisonment for attempted robbery in the first degree (two counts) and assault in the first degree (two counts), and a determinate term of one year imprisonment for criminal possession of a weapon in the fourth degree, with all terms to run concurrently.

ORDERED that the sentence is modified, on the law, by reducing the term of imprisonment imposed for attempted murder in the second degree from an indeterminate term of 6 to 12 years imprisonment to an indeterminate term of 4 to 12 years imprisonment;  as so modified, the sentence is affirmed.

 The People correctly concede that because the crime of attempted murder in the second degree does not meet the definition of an armed violent felony (see, CPL 1.20[41] ), the Supreme Court erred in imposing a minimum term of imprisonment which was one-half of the maximum term for that count (see, Penal Law former § 70.02[4];  People v. Pride, 173 A.D.2d 651, 570 N.Y.S.2d 227).   We have remedied the illegality by reducing the minimum term of imprisonment (see, People v. Hoppie, 220 A.D.2d 528, 632 N.Y.S.2d 33), and we find no merit to the defendant's contention that the resulting sentence of 4 to 12 years imprisonment is harsh or excessive (see, People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351).

MEMORANDUM BY THE COURT.

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