Opinion
April 21, 1987
Appeal from the Supreme Court, Bronx County (Hinkson, J.).
On June 6, 1985, defendant withdrew his plea of not guilty to a charge of murder and related crimes and pleaded guilty to manslaughter in the first degree and criminal use of a firearm in the first degree. The plea bargain included a promise of a sentence of 12 1/2 to 25 years on each of the counts, the sentences to run concurrently. Defendant admitted that on June 12, 1983, in concert with Elaine San Miguel, he shot and killed Gonzalo Valencia. Also, on June 6, 1985, pursuant to a separate indictment, defendant withdrew his not guilty plea and pleaded guilty to the only charge contained in that indictment, criminal possession of a weapon in the third degree. He received a promise that his sentence would be 2 1/3 to 7 years and would run concurrently with the other sentences. Defendant admitted that on July 7, 1983, he was in possession of a .380 automatic pistol.
Defendant pleaded guilty to manslaughter in the first degree, a violent felony offense. (Penal Law § 70.02.) However, he was not a predicate felon and, therefore, the minimum period of imprisonment for a violent felony offense could not exceed one third of the maximum unless the sentence was for a conviction of a class B armed felony offense. (Penal Law § 70.02.) While the facts of the case did establish the use of a gun, manslaughter in the first degree is not an armed felony offense since the use of a gun is not a statutory element of the crime. (See, People v Gonzalez, 99 A.D.2d 1001 [1st Dept 1984].) Since the clear intent of the court was to give the maximum sentence, there is no need to remand for resentence and the sentence is so modified.
Concur — Murphy, P.J., Kupferman, Ellerin, Wallach and Smith, JJ.