Appellate Division of the Supreme Court of New York, 1984

People v. Stewart

People v. Stewart
Appellate Division of the Supreme Court of New York · Decided May 1, 1984
101 A.D.2d 738
People v. Stewart

Opinion of the Court

Two judgments, Supreme Court, New York County (Gabel, J.), rendered May 3, 1982, convicting defendant, upon his pleas of guilty, of criminal possession of a weapon in the third degree and criminal possession of a controlled substance in the third degree and sentencing him to concurrent indeterminate terms of imprisonment of from 4Yz to 9 years on each, unanimously modified, on the law, to reverse the sentence on the conviction of *739criminal possession of a weapon in the third degree to reduce the same to 3Vz to 7 years, and, except as thus modified, affirmed. 11 As promised, Trial Term sentenced defendant to concurrent terms of imprisonment of 4Vz to 9 years on each conviction. With commendable candor the People point out that while the sentence was proper for the conviction of criminal possession of a controlled substance in the third degree, a class B felony, a sentence of AVz to 9 years exceeded the maximum permissible sentence for criminal possession of a weapon in the third degree, a class D felony. The maximum sentence defendant could have received, as a second felony offender, for his conviction of the latter crime was an indeterminate term of from 3Vz to 7 years. (Penal Law, § 70.06, subd 3, par [d].) Since it was Trial Term’s obvious intent to sentence defendant to at least 3Vz to 7 years, we see no need for a remand for resentence and modify the sentence accordingly. 11 We have examined defendant’s arguments and find that they are without merit. Thus, except for the modification indicated, we affirm. Concur — Sullivan, J. P., Ross, Silverman and Alexander, JJ.

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