Opinion
Submitted October 11, 2001.
November 5, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered April 5, 1999, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and sentencing him to an indeterminate term of seven years to life imprisonment.
Lynn W. L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Ann Bordley of counsel; Robert Ho on the brief), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.
ORDERED that the judgment is modified, on the law, by reducing the sentence from an indeterminate term of seven years to life imprisonment to an indeterminate term of four years to life imprisonment; as so modified, the judgment is affirmed.
As correctly conceded by the People, the Supreme Court erred in imposing, as a minimum term, seven years imprisonment. The defendant, as a persistent violent felony offender, was convicted of a class E violent felony. Under such circumstances, it is proper to impose, as a minimum term of imprisonment, the permissible determinate sentence for class E second violent felony offenders (see, People v. Tolbert, 93 N.Y.2d 86; People v. Bryant, 273 A.D.2d 320). The sentence of imprisonment for a second violent felony offender who has been convicted of a class E violent felony may not exceed a determinate sentence of four years (see, Penal Law — 70.04[3][d]). Accordingly, the defendant's minimum term of imprisonment must be reduced from seven years to four years.
O'BRIEN, J.P., GOLDSTEIN, SCHMIDT and SMITH, JJ., concur.