Opinion
August 2, 1999.
Appeal from the Supreme Court, Kings County (Leventhal, J.).
Ordered that the judgment is modified, on the law, by reducing the sentence imposed on the convictions of unlawful imprisonment in the first degree and attempted sexual abuse in the first degree from indeterminate terms of 1 1/2 to 4 1/2 years imprisonment to indeterminate terms of 1 1/3 to 4 years imprisonment; as so modified, the judgment is affirmed.
The defendant failed to preserve for appellate review the issue of whether the trial court improperly admitted into evidence a videotape, made in violation of his right to counsel, for the purpose of rebutting the defendant's insanity defense ( see, CPL 470.05; People v. Udzinski, 146 A.D.2d 245). In any event, had the issue been preserved, we would have concluded that although it had been improper for the trial court to admit such evidence ( see, People v. Ricco, 56 N.Y.2d 320; People v. MacKenzie, 193 A.D.2d 700), this error would not warrant reversal. The quantity and quality of the evidence is such that there is no reasonable possibility that the verdict was affected by the admission of the videotape ( see, People v. Rivera, 57 N.Y.2d 453; People v. Crimmins, 36 N.Y.2d 230; People v. MacKenzie, supra).
The sentence imposed for unlawful imprisonment in the first degree and attempted sexual abuse in the first degree was illegal ( see, Penal Law § 70.00 [e], [3] [b]). It is clear, however, that the Supreme Court intended to impose upon the defendant the maximum sentence for those offenses, and we find that it would be appropriate to do so. Consequently, the judgment is modified to reflect the intention of the Supreme Court ( see, People v. Dorch, 117 A.D.2d 677; People v. Gammon, 251 A.D.2d 512). The sentence is not excessive ( see, People v. Suitte, 90 A.D.2d 80).
S. Miller, J. P., Ritter, Florio and Luciano, JJ., concur.