Opinion
November 12, 1985
Appeal from the Supreme Court, Bronx County (John Collins, J.).
Defendant's sentences were predicated upon defendant's presumed status as an armed felony offender. Robbery in the first degree is considered a violent felony offense (Penal Law § 70.02 [a]) and a defendant convicted of that crime must be sentenced to an indeterminate prison term, the minimum of which must be one third the maximum (Penal Law § 70.02, [4]). A minimum term of imprisonment equal to one half the maximum may be imposed if the robbery is an armed felony offense (Penal Law § 70.02). An armed felony is defined by CPL 1.20 (41) as a crime involving:
"(a) possession, being armed with or causing serious physical injury by means of a deadly weapon, if the weapon is a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged; or
"(b) display of what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm."
Thus, a felony committed with a weapon other than a firearm is not an armed felony. Defendant's robbery offenses each involved the use of a knife but no firearm. Consequently, the sentencing of defendant as an armed felony offender was illegal and we vacate and remand.
Concur — Sullivan, J.P., Asch, Fein, Kassal and Ellerin, JJ.