Opinion
November 25, 1991
Appeal from the Supreme Court, Kings County (Greenberg, J.).
Ordered that the amended judgment under Indictment No. 7606/85 is modified, on the law, by reducing the defendant's conviction of criminal possession of stolen property in the first degree to a conviction of criminal possession of stolen property in the fourth degree, and by reducing the sentence imposed thereon from a term of 2 to 4 years imprisonment to a term of 1 1/2 to 3 years imprisonment; as so modified, the amended judgment under Indictment No. 7606/85 is affirmed; and it is further,
Ordered that the amended judgment under Indictment No. 5211/86 is affirmed.
Contrary to the defendant's contention, the record amply supports the Supreme Court's imposition of consecutive sentences pursuant to Penal Law § 70.25 (2-b) (see, People v. Rivera, 142 A.D.2d 614). The evidence fails to sustain the defendant's claim that his participation in the attempted robbery was so minor as to warrant concurrent sentencing; hence, we discern no improvident exercise of discretion in the Supreme Court's rejection of this claim (see generally, People v. Bressingham, 148 A.D.2d 463; People v. Camacho, 120 A.D.2d 671).
However, we agree that the defendant is entitled to the ameliorative benefit of the reclassification of the criminal possession of stolen property offenses which became effective prior to his resentencing (see, People v. Behlog, 74 N.Y.2d 237). Accordingly, his conviction of criminal possession of stolen property in the first degree must, as the People concede, be reduced to a conviction of criminal possession of stolen property in the fourth degree (see, e.g., People v. Young, 166 A.D.2d 625; People v. German, 157 A.D.2d 461; People v. Phillips, 154 A.D.2d 731). Moreover, inasmuch as the Supreme Court unequivocally stated its intention to sentence the defendant to the minimum permissible term on his possession of stolen property conviction, there is no need to remit the matter for resentencing, and we reduce his sentence of 2 to 4 years imprisonment to a term of 1 1/2 to 3 years imprisonment upon the reduced conviction (see generally, People v. Persaud, 166 A.D.2d 466). Kunzeman, J.P., Sullivan, Balletta and Copertino, JJ., concur.