Opinion
June 6, 1975
Appeal from the Supreme Court, Erie County.
Present — Marsh, P.J., Moule, Mahoney, Del Vecchio and Witmer, JJ.
Judgment insofar as it imposes sentence for possession of a weapon unanimously reversed, on the law, and matter remitted to Supreme Court, Erie County for resentencing, and otherwise judgment affirmed. Memorandum: Under section 70.00 Penal of the Penal Law, a sentence of imprisonment for a felony may be indeterminate, the maximum being at least three years. As to a Class D felony, the maximum sentence shall not exceed seven years (Penal Law, § 70.00, subd 2, par [d]), and, except as otherwise provided in instances not here applicable, the minimum shall be fixed by the State Board of Parole (Penal Law, § 70.00, subd 3, par [c]). In certain instances the court may impose an alternative definite sentence of one year or less in cases of conviction for Class D or E felonies (Penal Law, § 70.00, subd 4). However, from the sentencing court's remarks at the time of imposition of the sentence, it cannot be concluded that an alternative definite sentence was intended or warranted. The only legal sentence which here could be imposed was one for an indeterminate term with a maximum of three years. We have considered other points raised in appellant's brief and find them to be without merit.