Opinion
December 4, 1989
Appeal from the Supreme Court, Kings County (Goldberg, J.).
Ordered that the judgments are affirmed; and it is further,
Ordered that the amended judgment is modified, on the law, by reducing the sentence imposed from 3 1/2 years to 7 years to 2 1/3 years to 7 years; as so modified, the amended judgment is affirmed.
The record establishes that the defendant has two prior judgments of conviction for criminal possession of a weapon in the third degree under Penal Law § 265.02 (4), a class D violent felony offense (see, Penal Law § 70.02 [c]). Thus, contrary to the defendant's contention, he was properly adjudicated to be a persistent violent felony offender upon the instant convictions of robbery in the second degree, despite the fact that he had not previously been sentenced as a second felony offender (see, Penal Law § 70.08; § 70.04 [1] [b]; People v Herrar, 120 A.D.2d 614).
As the People properly concede, however, the sentence imposed upon the defendant's violation of probation, 3 1/2 to 7 years' imprisonment, was improper. The term of probation was imposed upon the defendant's conviction for criminal possession of a weapon in the third degree, a class D violent felony, which at that time was the defendant's first felony conviction. Thus, the maximum statutorily authorized sentence is 2 1/3 to 7 years. Since the record reflects that the maximum sentence was intended by the court, and contemplated by the plea bargain, we have reduced the sentence accordingly (see, People v Lawson, 122 A.D.2d 813; see also, People v Paxhia, 140 A.D.2d 962; People v Jones, 101 A.D.2d 738). Brown, J.P., Lawrence, Kooper and Balletta, JJ., concur.