People v. Borzelleri

Judgment unanimously modified, on the law and as a matter of discretion in the interest of justice, and, as modified, affirmed, in accordance with the following memorandum: In the exercise of discretion we modify the sentence appealed from to provide that it be concurrent with the consecutive sentences defendant is now serving (CPL 470.15 [3] [c]).

The sentence appealed from (an indeterminate term of 2 1/4 —7 years) was illegal because Penal Law § 70.02 (4) requires that the minimum imposed must be one third of the maximum. We therefore correct it to provide for an indeterminate term of 2 1/4 to 6 3/4 years. (Appeal from judgment of Supreme Court, Erie County, Easier, J. — attempted burglary, second degree.) Present — Hancock, Jr., J. P., Doerr, Denman, O’Donnell and Pine, JJ.