People v. White

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered August 28, 1998, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously modified, on the law, to the extent of vacating the sentence and second violent felony offender adjudication, and substituting a term of 2V2 to 5 years, as a second felony offender, and otherwise affirmed.

As the People concede, defendant was improperly sentenced as a second violent felony offender for his conviction of criminal *159possession of a weapon in the third degree under Penal Law § 265.02 (1), which is not classified as a violent felony (Penal Law § 70.02 [1] [c]). We perceive no basis for a modification of sentence other than as indicated. Since defendant had a reasonable expectation of finality in the five-year term originally imposed pursuant to his plea bargain (see, People v Gilchrist, 231 AD2d 424), we reject the People’s suggestion that a sentence with a maximum term exceeding five years be imposed. Concur — Mazzarelli, J.P., Ellerin, Lemer, Rubin and Marlow, JJ.