Opinion
September 30, 1971
Motion by the People for reargument granted; and, upon reargument, the judgment of the Supreme Court, New York County, rendered on May 12, 1970, as to defendant Kerrigan, be and the same hereby is unanimously modified, on the law and on the facts, and the sentence of four years on each of the felony charges accorded the defendant Kerrigan, not to exceed four years in State prison, is reduced to an indeterminate term with a maximum of three years, and, as so modified, the judgment is otherwise affirmed; and the first decretal paragraph of the order of this court entered on June 1, 1971, is amended accordingly ( 37 A.D.2d 515). Under section 70.00 Penal of the Penal Law, a sentence of imprisonment for a felony shall be an indeterminate sentence, the maximum of which shall be at least three years. As to a Class E felony, the maximum shall not exceed four years (subd. 2, par. [e]), and the minimum shall be fixed by the State Board of Parole in accordance with the provisions of the Correction Law (subd. 3, par. [c]). In certain instances, the court may impose a definite sentence of one year or less in cases of convictions for Class D or E felonies (§ 70.05). Since in the instant case imposition of sentence pursuant to section 70.05 was not warranted, the only legal sentence which could be imposed was one for an indeterminate term with a maximum of at least three years. Reduction of the sentence in the order of June 1, 1971, to a term with a maximum of two years was therefore impermissible. Accordingly, the order must be modified to provide for a reduction of the sentence to an indeterminate term with a maximum of three years.
Concur — Stevens, P.J., Capozzoli, McGivern, Kupferman and McNally, JJ.