Opinion
May 16, 1985
Appeal from the Supreme Court, Bronx County (Joseph A. Cerbone, J.).
Defendant was convicted of the charges involved as a result of the robbery of a liquor store. Inasmuch as the murder of Carlos Bagatta and the wounding of Frank Bagatta during the course of the robbery were separate and discrete acts, the imposition of a consecutive sentence for the assault presents no problem ( People v. Brathwaite, 63 N.Y.2d 839).
However, the imposition of a sentence of 8 1/3 years to 25 years for the count charging criminal possession of a weapon in the second degree was improper. That crime, as defined in Penal Law § 265.03, is a class C felony. Thus, as the prosecution concedes, the maximum term of imprisonment permissible on that count is 15 years (Penal Law § 70.00 [c]).
Inasmuch as the intent of the sentencing court to impose the maximum sentence on defendant is clear, we find no need to remand for resentence. Accordingly, we modify to reduce the sentence on that count to 5 to 15 years to run concurrently with the sentences imposed for murder in the second degree and the two counts of robbery in the first degree, but consecutive to the sentence imposed for assault in the first degree.
Concur — Sullivan, J.P., Ross, Bloom, Kassal and Ellerin, JJ.