Opinion
February 7, 1997.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Cayuga County Court for resentencing in accordance with the following
Present — Green, J.P., Lawton, Doerr, Balio and Fallon, JJ.
Defendant was convicted of sexual abuse in the first degree, a class D violent felony. At the time defendant committed that offense, Penal Law § 70.02 (4) required that the minimum term of an indeterminate sentence "must be fixed by the court at one-third of the maximum term imposed". County Court imposed an indeterminate term of incarceration of 2 to 7 years. Because the minimum term is less than one third of the maximum, it is unlawful and must be vacated ( see, People v Martinez, 213 AD2d 1072, 1073; People v Palmen, 186 AD2d 1075; People v Price, 140 AD2d 927, 928). Thus, we modify the judgment by vacating the sentence, and we remit the matter to Cayuga County Court for resentencing.
With respect to the contention that the sentence is unduly harsh or severe, defendant waived his right to appeal that issue ( see, People v Allen, 82 NY2d 761). (Appeal from Judgment of Cayuga County Court, Corning, J. — Sexual Abuse, 1st Degree.)