We therefore further modify the judgment by reducing the conviction under count 1 of the indictment to that crime, for which proof of value of the stolen items is not required (see Slack, 137 A.D.3d at 1570, 27 N.Y.S.3d 301; People v. Miller, 174 A.D.2d 989, 990, 572 N.Y.S.2d 149 [4th Dept. 1991], lv denied 78 N.Y.2d 1078, 577 N.Y.S.2d 241, 583 N.E.2d 953 [1991]). We note that, because defendant has already served the maximum term of incarceration allowed for that offense, there is no need to remit the matter to County Court for resentencing on count 1 of the indictment (see People v. McKinney, 91 A.D.3d 1300, 1300, 937 N.Y.S.2d 507 [4th Dept. 2012]). Rather, in the interest of judicial economy, we further modify the judgment by vacating the sentence imposed on count 1 of the indictment and imposing the maximum sentence allowed for a class A misdemeanor, i.e., a definite sentence of 364 days.
We therefore further modify the judgment by reducing the conviction under count 1 of the indictment to that crime, for which proof of value of the stolen items is not required (see Slack, 137 A.D.3d at 1570; People v Miller, 174 A.D.2d 989, 990 [4th Dept 1991], lv denied 78 N.Y.2d 1078 [1991]). We note that, because defendant has already served the maximum term of incarceration allowed for that offense, there is no need to remit the matter to County Court for resentencing on count 1 of the indictment (see People v McKinney, 91 A.D.3d 1300, 1300 [4th Dept 2012]). Rather, in the interest of judicial economy
We further conclude, however, that the evidence is legally sufficient to support a conviction of the lesser included offense of criminal possession of a firearm, a class E felony (ยง 265.01-b), and we therefore modify the judgment accordingly. Because defendant has already served the maximum term of imprisonment permitted for a class E felony, there is no need to remit the matter to Supreme Court for resentencing on that count (see People v McKinney, 91 A.D.3d 1300, 1300 [4th Dept 2012]). Instead, in the interest of judicial economy, we further modify the judgment by vacating the sentence imposed on count one and by imposing the maximum allowed for a class E felony, i.e., an indeterminate term of imprisonment of 1โฆโ to 4 years (see id. at 1300-1301).
We further conclude, however, that the evidence is legally sufficient to support a conviction of the lesser included offense of criminal possession of a firearm, a class E felony (ยง 265.01-b), and we therefore modify the judgment accordingly. Because defendant has already served the maximum term of imprisonment permitted for a class E felony, there is no need to remit the matter to Supreme Court for resentencing on that count (see People v McKinney, 91 AD3d 1300, 1300 [4th Dept 2012]). Instead, in the interest of judicial economy, we further modify the judgment by vacating the sentence imposed on count one and by imposing the maximum allowed for a class E felony, i.e., an indeterminate term of imprisonment of 1? to 4 years (see id. at 1300-1301).
50 (3) by going to the protected person's house, and we therefore modify the judgment accordingly (seeDewall , 15 A.D.3d at 501, 790 N.Y.S.2d 182 ; see generally CPL 470.15 [2] [a] ). Remittal for resentencing is unnecessary since defendant has already served the maximum sentence for criminal contempt in the second degree, and we therefore further modify the judgment by sentencing him to the maximum legal term of 364 days' incarceration for that crime (see Penal Law ยง 70.15 [1], [1-a] [b] ; see generallyPeople v. McKinney , 91 A.D.3d 1300, 1300, 937 N.Y.S.2d 507 [4th Dept. 2012] ). Defendant's remaining contentions do not warrant reversal or further modification of the judgment.
We agree with defendant, however, that the evidence is legally insufficient to support the conviction of that crime because as the People correctly concede, there was no evidence regarding the value of the truck, a requisite element of that offense (see generally Morgan, 111 A.D.3d at 1256โ1257, 974 N.Y.S.2d 687 ). We further conclude, however, that the evidence is legally sufficient to support the lesser included offense of criminal possession of stolen property in the fifth degree (Penal Law ยง 165.40 ), and we therefore modify the judgment accordingly (see CPL 470.15[2][a] ; People v. Pallagi , 247 A.D. 777, 286 N.Y.S. 405 [Appeal No. 1], 91 A.D.3d 1266, 1270, 937 N.Y.S.2d 486 ). Because defendant has served the maximum one-year sentence for that offense (see Penal Law ยงยง 70.15[1] ; 70.35), there is no need to remit the matter to Supreme Court for resentencing (see People v. McKinney, 91 A.D.3d 1300, 1300, 937 N.Y.S.2d 507 ). In the interest of judicial economy, we further modify the judgment by vacating the sentence imposed on count three and by imposing the maximum sentence allowed for class A misdemeanor, i.e., a definite sentence of one year (see id. ). Contrary to defendant's contention, viewing the elements of the crime of burglary in the third degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that the verdict with respect to those counts is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).
Accordingly, I would modify the defendant's conviction of grand larceny in the fourth degree to petit larceny, and vacate the sentence imposed on that count. Since the defendant has already served the maximum sentence allowed for the class A misdemeanor of petit larceny, we would need not remit for resentencing on that count (see People v McKinney, 91 AD3d 1300). ENTER:
Accordingly, I would modify the defendant's conviction of grand larceny in the fourth degree to petit larceny, and vacate the sentence imposed on that count. Since the defendant has already served the maximum sentence allowed for the class A misdemeanor of petit larceny, we would need not remit for resentencing on that count (see People v. McKinney, 91 A.D.3d 1300, 937 N.Y.S.2d 507 ).
Contrary to defendant's contention, County Court properly granted the People's motion to amend the indictment to reflect that the controlled substance at issue was oxycodone, and not cocaine. Although the grand jury minutes are not included in the record on appeal, the record nevertheless establishes that the laboratory report admitted in evidence during the grand jury proceeding identified the pills that were analyzed as oxycodone. We therefore conclude that the court's determination to amend the indictment based upon a scrivener's error neither changed the theory of the prosecution nor tended to prejudice defendant on the merits ( see People v. Wright, 107 A.D.3d 1398, 1400, 967 N.Y.S.2d 296, lv. denied23 N.Y.3d 1026, 992 N.Y.S.2d 809, 16 N.E.3d 1289; cf. People v. McKinney, 91 A.D.3d 1300, 1300, 937 N.Y.S.2d 507). We reject defendant's further contention that the court's Sandoval ruling constitutes reversible error.