Opinion
January 23, 1989
Appeal from the Supreme Court, Kings County (Pincus, J.).
Ordered that the judgment is modified, on the law, by reducing the minimum term of the sentence imposed upon the defendant's conviction of attempted murder in the second degree from 12 1/2 to 8 1/3 years; as so modified, the judgment is affirmed.
On August 26, 1983, at approximately 1:00 P.M., the defendant and two accomplices (who were not apprehended) robbed a private payroll courier of about $18,000. During the course of the robbery, the courier was shot three times in the stomach, once by the defendant. As the defendant was attempting to flee, he was shot in the shoulder by the courier. The police arrived and arrested the wounded defendant. Both the defendant and the courier were taken to the hospital.
There is no merit to the defendant's contention that the physical evidence recovered at the scene, as well as the bullet-proof vest that he was wearing, should have been suppressed because he was arrested without probable cause. The information from identified citizens (see, People v Alston, 139 A.D.2d 655, lv denied 72 N.Y.2d 855; People v Hairston, 117 A.D.2d 618, lv denied 67 N.Y.2d 884), the responding officers' observations and the defendant's own spontaneous statement at the scene clearly provided the police with probable cause to believe that the defendant was one of the perpetrators involved in the shooting and robbery of the courier.
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. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15).
However, it was error for the sentencing court to have imposed a minimum term that was one half of the maximum term upon the defendant's conviction for attempted murder in the second degree because that crime is not an armed felony offense by definition and the defendant was a first felony offender (see, Penal Law § 70.02; §§ 110.00, 125.25; CPL 1.20; People v Newton, 138 A.D.2d 415, lv denied 72 N.Y.2d 864; People v Frawley, 117 A.D.2d 613, lv denied 67 N.Y.2d 883). Accordingly, the minimum term of the sentence on the attempted murder count should be reduced from 12 1/2 to 8 1/3 years. In all other respects, however, the defendant's sentence was proper (see, People v Suitte, 90 A.D.2d 80).
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Brown, J.P., Lawrence, Kooper and Spatt, JJ., concur.