Opinion
December 2, 1986
Appeal from the Supreme Court, New York County (Jeffrey Atlas, J.).
The defendant correctly contends, and the People concede, that the sentences imposed on defendant's convictions of the crimes of manslaughter in the first degree and attempted murder in the second degree were illegal.
Our review of the evidence in the record in the instant case indicates defendant used a gun in the commission of the crimes for which he was convicted. However, possession of a deadly weapon or display of a firearm is not an element required by statute to prove either the crime of manslaughter in the first degree (People v. Creekmore, 106 A.D.2d 260 [1st Dept 1984]) or the crime of attempted murder in the second degree (People v. Lawrence, 97 A.D.2d 718 [1st Dept 1983]). Consequently, neither one of these crimes is an armed felony offense, as defined by CPL 1.20 (41) (People v. Rivera, 111 A.D.2d 71, 72 [1st Dept 1985]). Since both of these crimes are class B violent felony offenses (Penal Law § 70.02 [a]), "the minimum period of imprisonment that may be imposed for a violent felony offense cannot exceed one third of the maximum [Penal Law § 70.02 (4)]" (People v. Serrano, 116 A.D.2d 509, 510 [1st Dept 1986]), and, Criminal Term, therefore, erred by imposing sentences on the manslaugter in the first degree and attempted murder in the second degree convictions, which contain minimum terms that are one half of the maximum terms.
We recognize "the fact that a trial court is in the most advantageous position to determine the proper sentence, having observed the defendant and being intimately familiar with the facts and circumstances underlying the conviction" (People v Junco, 43 A.D.2d 266, 268 [1st Dept 1974], affd 35 N.Y.2d 419, cert denied 421 U.S. 951), and, accordingly, we remand this matter to Criminal Term to correct these sentences.
We have examined the other points raised by the defendant, and find them to be lacking in merit.
Concur — Ross, J.P., Carro, Asch, Kassal and Ellerin, JJ.