Opinion
June 7, 1993
Appeal from the Supreme Court, Queens County (Sherman, J.).
Ordered that the sentence is modified, on the law, by reducing the term of imprisonment to an indeterminate term of 8 1/3 to 25 years imprisonment; as so modified, the sentence is affirmed; and it is further,
Ordered that the appeal from the order is dismissed as academic, in view of the determination on the appeal from the sentence.
As the defendant correctly contends, and the People concede, the crime of manslaughter in the first degree is not an armed felony offense, inasmuch as neither the possession of a gun nor the display of what appears to be a gun is an element of that crime (see, CPL 1.20; People v. Mercer, 121 A.D.2d 476; see also, People v. Marty, 150 A.D.2d 171). Hence, since the defendant is not a second felony offender, the minimum period of imprisonment cannot exceed one-third of the maximum (see, Penal Law § 70.02). Accordingly, we have reduced the sentence to an indeterminate term of 8 1/3 to 25 years imprisonment. In view of this determination, we dismiss the defendant's appeal from the denial of his motion pursuant to CPL 440.20 as academic. Mangano, P.J., Sullivan, Rosenblatt, Santucci and Joy, JJ., concur.