Opinion
June 15, 1989
Appeal from the Supreme Court, Bronx County (Alexander Chananau, J.).
The People concede that the sentence must be modified with respect to both the conviction for rape in the first degree and criminal use of a firearm in the first degree. In that regard, the People correctly assert that since the rape conviction was not for an armed violent felony offense, 12 1/2 to 25 years was not an authorized sentence. Accordingly, the appropriate sentence should be 8 1/3 to 25 years, which is the maximum minimum for a class B violent felony offense. Moreover, the People also properly note that the sentence for criminal use of a firearm must be vacated in that it is a noninclusory concurrent count of the convictions for first degree robbery (People v. Brown, 67 N.Y.2d 555, 560). We have considered defendant's other contentions and find them to be without merit.
Concur — Kupferman, J.P., Sullivan, Carro, Milonas and Smith, JJ.