Opinion
KA 99-05626
June 13, 2003.
Appeal from a judgment of Supreme Court, Erie County (Burns, J.), entered December 23, 1997, convicting defendant upon his plea of guilty of sexual abuse in the first degree.
JOHN BEDASKA, WILLIAMSVILLE, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (DONNA A. MILLING OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, WISNER, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the minimum period of imprisonment to 2a years and as modified the judgment is affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of sexual abuse in the first degree, a class D violent felony, and sentencing him to an indeterminate term of imprisonment of 3 to 7 years. As the People correctly concede, the sentence is illegal, and the minimum period of imprisonment should be reduced to 2a years. At the time the offense was committed in 1993, Penal Law 70.02 (former [4]) required that the minimum period of imprisonment be fixed at one third of the maximum term imposed ( see People v. Trimm, 252 A.D.2d 673, 675, lv denied 92 N.Y.2d 931). We therefore modify the judgment by reducing the minimum period of imprisonment to 2a years.