Opinion
July 9, 1990
Appeal from the County Court, Westchester County (Colabella, J.).
Ordered that the judgment is modified, on the law, by reducing the minimum terms of imprisonment imposed on the defendant's convictions of: (1) attempted murder in the second degree from 12 1/2 years to 8 1/3 years, (2) kidnapping in the second degree from 12 1/2 to 8 1/3 years, (3) assault in the first degree from 7 1/2 to 5 years, (4) criminal use of firearm in the second degree from 7 1/2 to 5 years, and (5) criminal possession of a weapon in the second degree from 7 1/2 to 5 years; as so modified, the judgment is affirmed.
Viewing the evidence, in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt. The evidence adduced at the trial established that the victim was forced to enter a moving vehicle, driven by the defendant, between the approximate hours of 3:30 P.M. and 4:30 P.M., on May 27, 1986. He was thereafter driven around for approximately three hours while his freedom of movement was restrained and while he was under the threat of use of deadly physical force (see, Penal Law § 135.00; § 135.20). The attempted murder of the victim occurred at approximately 7:00 P.M. that evening at the Saw Mill River Parkway toll booth plaza, when the victim tried to escape through the window on the driver's side of the vehicle.
The defendant also argues that the People's witnesses lacked credibility and that the verdict was against the weight of evidence. We disagree. Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94). Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (see, People v. Garafolo, 44 A.D.2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
However, it was error for the sentencing court to have imposed a minimum term that was one half of the maximum term upon the defendant's convictions of attempted murder in the second degree and kidnapping in the second degree because those crimes are not armed felony offenses by definition (see, Penal Law § 70.02; §§ 125.25, 135.20; CPL 1.20; People v. Bartlett, 146 A.D.2d 705). Instead, the minimum terms of imprisonment for those convictions should have been fixed at one third of the maximum terms imposed (see, Penal Law § 70.02). Similarly, it was error for the sentencing court to have imposed a minimum term of imprisonment that was one half of the maximum term upon the defendant's convictions of assault in the first degree, criminal use of a firearm in the second degree, and criminal possession of a weapon in the second degree since those crimes are not class B armed felonies (see, Penal Law § 70.02; §§ 120.10, 265.08, 265.03; People v. Stuckey, 147 A.D.2d 724; People v. Bennett, 144 A.D.2d 564). Instead, the minimum terms for those convictions should have also been fixed at one third of the maximum terms imposed (see, Penal Law § 70.02). The judgment of conviction has been modified accordingly.
We note that it was proper for the sentencing court to impose a minimum term that was one half the maximum term upon the defendant's conviction of criminal use of a firearm in the first degree, since that crime is a class B armed felony offense (see, Penal Law § 70.02; § 265.09; CPL 1.20).
We have examined the defendant's remaining arguments, including those raised in his supplemental pro se brief, and find them to be either unpreserved for appellate review or without merit (see, People v. Valero, 134 A.D.2d 635, 636; People v. Kalyon, 142 A.D.2d 650, 651; People v. Ko, 133 A.D.2d 850; People v. Gamal, 148 A.D.2d 468; People v. Suitte, 90 A.D.2d 80). Mangano, P.J., Rubin, Rosenblatt and Miller, JJ., concur.