People v. La Var

Appeal from a judgment of the Supreme Court, Erie County (Mario J. Rossetti, A.J.), rendered September 21, 2001. The judgment convicted defendant, upon a jury verdict, of assault in the second degree and criminal possession of a weapon in the third degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence imposed on criminal possession of a weapon in the third degree and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for resentencing on count two of the indictment.

Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of assault in the second degree (Penal Law § 120.05 [2]) and criminal possession of a weapon in the third degree (§ 265.02 [1]). Supreme Court did not err in resubmitting the case to the jury with an explanation that the initial verdict was legally defective and with instructions to resume its deliberations for the purpose of reconsidering such verdict and to render a proper verdict (see CPL 310.50 [2]; see generally People v Rosales, 303 AD2d 769 [2003], lv denied 100 NY2d 598 [2003]; People v Abreu, 184 AD2d 707, 710 [1992], lv denied 80 NY2d 972 [1992]). However, as the People concede, the determinate term of incarceration of three years imposed on the conviction of criminal possession of a weapon in the third degree is illegal. The crime is a nonviolent felony (see Penal Law § 70.02 [1] [c]), requiring that any term of incarceration imposed thereon be indeterminate (see § 70.06 [2], [3] [d]; [4] *788[b]). We therefore modify the judgment by vacating the sentence imposed on count two of the indictment, charging criminal possession of a weapon in the third degree, and we remit the matter to Supreme Court, Erie County, for resentencing on that count (see People v Endresz, 1 AD3d 888 [2003]; People v Chandler, 307 AD2d 770, 771 [2003]). Present—Pigott, Jr., PJ., Pine, Hurlbutt, Kehoe and Hayes, JJ.