Opinion
February 6, 1989
Appeal from the Supreme Court, Kings County (Kreindler, J.).
Ordered that the judgment is modified, on the law, by reducing the sentence imposed on the defendant's conviction of attempted murder in the second degree from 12 1/2 to 25 years' imprisonment to 8 1/3 to 25 years' imprisonment; as so modified, the judgment is affirmed.
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. Contrary to the defendant's contention, the evidence was legally sufficient to establish that the defendant had the specific intent to kill Perry Peebles notwithstanding that it was an accomplice who actually committed the acts (see, Penal Law § 20.00; People v Whatley, 69 N.Y.2d 784; People v La Belle, 18 N.Y.2d 405). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
However, the sentence imposed upon the defendant for attempted murder in the second degree, 12 1/2 to 25 years' imprisonment, was unlawful. The sentencing court was apparently acting under the belief that attempted murder, a class B violent felony offense (see, Penal Law § 70.02 [a]), is an armed violent felony, thereby giving it the discretion to impose a minimum term of imprisonment which is between one third and one half the maximum term imposed (see, Penal Law § 70.02). However, attempted murder in the second degree is not an armed felony, because it does not include as an element either possession, being armed with or causing serious physical injury by means of a deadly weapon or the display of what appears to be a firearm (see, CPL 1.20; People v Lawrence, 97 A.D.2d 718, affd 64 N.Y.2d 200; People v Serrano, 116 A.D.2d 509). Thus, the minimum authorized term of imprisonment was not discretionary, and the sentence has been modified accordingly.
We have considered the defendant's remaining contentions and find them to be without merit. Brown, J.P., Lawrence, Eiber and Kooper, JJ., concur.