Opinion
June 3, 1996
Appeal from the Supreme Court, Kings County (Beldock, J.).
Ordered that the sentence is reversed, on the law, the adjudication that the defendant is a second violent felony offender is vacated, the defendant is determined to be a second felony offender, and the matter is remitted to the Supreme Court, Kings County, for resentencing.
As the People concede, the sentence imposed was illegal. The defendant was convicted, upon his plea of guilty, of attempted assault in the second degree and adjudicated a second violent felony offender based on his prior conviction of robbery in the second degree. Attempted assault in the second degree, however, is not a violent felony offense ( see, Penal Law § 70.02 [d]; § 110.05 [6]). The indeterminate sentence of 2 1/4 to 4 1/2 years imposed exceeded the maximum authorized sentence of 2 to 4 years for a second felony offender convicted of a Class E felony ( see, Penal Law § 70.06 [e]; 4 [b]). Mangano, P.J., Bracken, Sullivan, Altman and Friedmann, JJ., concur.