Opinion
March 15, 1999
Appeal from the County Court, Orange County (Berry, J.).
Ordered that the judgment is modified, on the law, by vacating the sentence imposed on the defendant's conviction of criminal possession of a weapon in the third degree and substituting therefor an indeterminate sentence of 3 1/2 to 7 years imprisonment; as so modified, the judgment is affirmed.
Upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15).
The court did not err in denying the defendant's request to charge criminal trespass in the second degree as a lesser-included offense of burglary in the second degree ( see, Penal Law § 140.15, 140.25 Penal). Although criminal trespass in the second degree is a proper lesser-included offense of burglary in the second degree, i.e., it is theoretically impossible to commit the greater offense without concomitantly committing the lesser ( see, People v. Peyton, 244 A.D.2d 976), there is no reasonable view of the evidence at bar to support a finding that the defendant committed the lesser offense but not the greater ( see, People v. Scarborough, 49 N.Y.2d 364, 368).
As the People correctly concede, the seven-year definite sentence imposed for his conviction of criminal possession of a weapon in the third degree is illegal, since the weapons charge was not a violent felony offense ( see, Penal Law § 265.02). Accordingly, since the record clearly indicates the trial court's intention to impose a maximum sentence ( see, Penal Law § 70.04 [c]), we hereby modifier the sentence for that conviction to an indeterminate term of imprisonment of 3 1/2 to 7 years ( see, Penal Law § 70.02 [c]; § 70.06 [4] [h]; People v. Sellers, 113 A.D.2d 850).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
S. Miller, J. P., Florio, McGinity and Luciano, JJ., concur.