People v. Smith

Judgment, Supreme Court, New *687York County (Rothwax, J.), rendered January 16,1984, convicting defendant of an attempt to commit the crime of assault in the second degree and sentencing him as a second violent felony offender to a term of from 2 to 4 years, unanimously modified, on the law, to the extent of reversing the sentence and vacating the same and, except as thus modified, affirmed, and the matter remanded for resentence.

Defendant was sentenced to the minimum legal sentence allowable, 2 to 4 years, on the understanding that he was a second violent felony offender. As the People commendably concede, however, defendant was incorrectly sentenced since the crime of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [6]), the class E felony to which he pleaded guilty, is not a violent felony offense. Of the class E felonies, only the attempt to commit certain categories of criminal possession of a weapon in the third degree is considered a violent felony offense. (See, Penal Law § 70.02 [1] [d].) Although a 2- to 4-year sentence is not beyond the legal maximum for a predicate felony conviction such as is here involved, the court may have wished to impose the minimum sentence allowable. The minimum punishment for a second felony offender convicted of a class E felony is IV2 to 3 years. Accordingly, we vacate the sentence and remand for resentence. (See, People v Hulsen, 85 AD2d 532.) In so doing we express no opinion as to the sentence imposed or to be imposed. Concur — Kupferman, J. P., Sullivan, Ross and Carro, JJ.