Opinion
April 3, 1995
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the judgment is modified, on the law, by vacating the sentence imposed for attempted murder in the second degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing.
On April 19, 1991, at approximately 10:00 P.M., the defendant and an unapprehended accomplice, each armed, entered the Jamaican Food Restaurant at 1135 Flatbush Avenue in Brooklyn. The defendant held a gun to the head of the cashier and demanded money. When the cashier responded that she did not know where the money was, the defendant pointed the gun at the chef and again demanded money. The chef placed money from the register into a bag at the defendant's command. A struggle ensued between the defendant and the chef, and the chef knocked the gun from the defendant's hand. The defendant then called to his accomplice, who was guarding the door, and told him to kill the chef. The accomplice fired a shot at the chef, but the chef escaped uninjured. The defendant and the unapprehended accomplice fled, leaving the bag of money inside the restaurant.
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 beyond a reasonable doubt. 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 (see, CPL 470.15).
Contrary to the defendant's contention, the court properly admitted into evidence the testimony of a police officer in order to clarify the time of the arrest of the defendant. It is well settled that where the opposing party opens the door on cross-examination, raising apparent inconsistencies to discredit the testimony of a witness, the other party, in this case the People, on redirect may clarify and reconcile the apparent inconsistencies by informing the jury of the relevant surrounding circumstances (see, People v Melendez, 55 N.Y.2d 445, 451).
The court erred, however, in imposing a minimum term of imprisonment that was one-half of the maximum term upon the defendant's conviction of attempted murder in the second degree. The 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 King, 155 A.D.2d 480). Accordingly, we remit this count to Supreme Court for resentencing on the attempted murder count.
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Miller, J.P., O'Brien, Krausman and Florio, JJ., concur.