Opinion
Submitted May 6, 1999
July 19, 1999
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barbaro, J.), rendered June 9, 1997, convicting him of rape in the first degree, sexual abuse in the first degree, incest, and endangering the welfare of a child, after a nonjury trial, and sentencing him to concurrent indeterminate terms of imprisonment of 12 1/2 to 25 years for rape in the third degree, 3 1/2 to 7 years for sexual abuse in the first degree, 2 to 4 years for incest, and one year for endangering the welfare of a child.
Mark Diamond, New York, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Ruth E. Ross, and Melissa P. Eisen of counsel), for respondent.
SONDRA MILLER, J.P., GLORIA GOLDSTEIN, HOWARD MILLER, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by reducing the term of imprisonment imposed on the conviction of incest from 2 to 4 years to 1 1/3 to 4 years; as so modified, the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review ( see, CPL 470.05; People v. Tallarine, 223 A.D.2d 738). In any event, 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 beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15).
Contrary to the defendant's contention, the record clearly indicates that his waiver of a jury trial was a knowing and intelligent decision ( see, People v. Oglesby, 245 A.D.2d 469; People v. Jackson, 220 A.D.2d 533).
As correctly conceded by the People, the defendant's sentence for the incest conviction should be reduced from 2 to 4 years to 1 1/3 to 4 years. Since the defendant had no prior felony convictions, his minimum sentence should have been one-third rather than one-half of the maximum ( see, Penal Law § 70.00[b]; see also, People v. Glass, 242 A.D.2d 305; People v. Toledo, 204 A.D.2d 667). Accordingly, the minimum sentence should be reduced from 2 years to 1 1/3 years. As the court clearly intended to sentence the defendant to the maximum possible term with respect to this count, the matter need not be remitted for resentencing ( see, People v. Fabian, 240 A.D.2d 591; People v. Correll, 207 A.D.2d 410; People v. Persaud, 166 A.D.2d 466). Moreover, the sentence imposed on the remaining convictions was neither harsh nor excessive ( see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.