Opinion
October 31, 1989
Appeal from the Supreme Court, New York County (Jerome Hornblass, J.).
Second degree escape is a class E, nonviolent felony. (Penal Law § 205.10, 70.02 Penal [1] [d].) Despite Supreme Court's clearly stated intention to sentence the defendant to the "minimum term", the court imposed the maximum of 2 to 4 years' imprisonment under the mistaken belief that the defendant had been convicted of a violent felony offense. Neither defense counsel nor the prosecutor called this mistake to the court's attention. We therefore modify the sentence to reflect the court's stated intention of sentencing the defendant to the minimum term (1 1/2 to 3 years' imprisonment) (see, People v Cuesta, 111 A.D.2d 10 [1st Dept 1985]; People v Tomasullo, 112 A.D.2d 960 [2d Dept 1985]).
We have reviewed the other arguments raised by the defendant on appeal and find them to be without merit.
Concur — Sullivan, J.P., Carro, Asch, Rosenberger and Ellerin, JJ.