Opinion
December 4, 1995
Appeal from the Supreme Court, Queens County (Hanophy, J.).
Ordered that the sentence is modified, on the law, by reducing the minimum term of imprisonment to 8 1/2 years; as so modified, the sentence is affirmed.
The defendant contends, and the People concede, that the court erroneously imposed a sentence of 12 1/2 to 25 years imprisonment rather than a sentence of 8 1/2 to 25 years imprisonment. The defendant pleaded guilty to robbery in the first degree pursuant to subdivision (1) of Penal Law § 160.15 under count three of the indictment, a crime which is not an "armed felony" since neither the possession nor the display of a gun is a statutory element thereof (CPL 1.20; People v Seifert, 173 A.D.2d 655; People v Ulses, 132 A.D.2d 584). Accordingly, the minimum term of imprisonment should have been one-third, rather than one-half, of the maximum (see, Penal Law § 70.00; § 70.02 [4]; § 70.04 [4]; People v Pena, 192 A.D.2d 728). Mangano, P.J., Sullivan, Balletta, Santucci and Krausman, JJ.