PEOPLE v. McKAY

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

The PEOPLE, etc., respondent, v. Anthony McKAY, appellant.

Decided: September 27, 2004

A. GAIL PRUDENTI, P.J., MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN, THOMAS A. ADAMS, and ROBERT A. SPOLZINO, JJ. Laura R. Johnson, New York, N.Y. (Laura Boyd of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Joyce Slevin of counsel), for respondent.

Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Garry, J.), imposed November 21, 2002, upon his conviction of robbery in the first degree, robbery in the second degree, robbery in the third degree, grand larceny in the fourth degree, petit larceny, and criminal possession of a weapon in the fourth degree, upon his plea of guilty, and sentencing him to determinate terms of 10 years imprisonment on the conviction of robbery in the first degree, 10 years imprisonment on the conviction of robbery in the second degree, 7 years imprisonment on the conviction of robbery in the third degree, one year imprisonment on the conviction of petit larceny, and one year imprisonment on the conviction of criminal possession of a weapon in the fourth degree, and an indeterminate term of two to four years imprisonment on the convictions of grand larceny in the fourth degree, to run concurrently with each other, on the grounds that the sentence is both illegal and excessive.

ORDERED that the sentence is modified, on the law, by reducing the term of imprisonment imposed on the conviction of robbery in the third degree from a determinate term of 7 years imprisonment to an indeterminate term of 3 1/212 to 7 years imprisonment;  as so modified, the sentence is affirmed.

As the People concede, since robbery in the third degree is a class D nonviolent felony offense (see Penal Law §§ 160.05, 70.02[1][c] ), it was improper to impose a determinate term of imprisonment on that count.   As a second felony offender, the appropriate sentence to impose upon the defendant was an indeterminate term of imprisonment of 3 1/212 to 7 years imprisonment (see Penal Law § 70.06[3][d];  [4][b] ).

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