Opinion
February 16, 2000
Appeal from Judgment of Supreme Court, Onondaga County, Brunetti, J. — Grand Larceny, 4th Degree.
PRESENT: PINE, J. P., HAYES, SCUDDER AND LAWTON, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum:
Defendant appeals from judgments convicting him upon his pleas of guilty of grand larceny in the fourth degree (Penal Law § 155.30) (appeal No. 1) and criminal possession of a weapon in the third degree (Penal Law § 265.02) (appeal No. 2). The certificates of conviction and the sentencing minutes indicate that defendant was not sentenced as a second felony offender. Thus, we reject defendant's contention that Supreme Court erred in failing to comply with CPL 400.21, which outlines the procedure for determining whether a defendant is a second felony offender. At sentencing, defendant withdrew his motion to withdraw his guilty plea to criminal possession of a weapon in the third degree, and thus we do not consider his present contention that the court should have allowed him to withdraw that plea.
Defendant was sentenced to a term of imprisonment of 2 to 4 years on his conviction of grand larceny in the fourth degree. Because the minimum period of imprisonment is illegal (Penal Law § 70.00 [e]; [3] [b]), we modify the judgment in appeal No. 1 by reducing the minimum period of imprisonment to a term of 1 years.