Opinion
September 18, 1986
Appeal from the Supreme Court, New York County (Rose L. Rubin, J.).
As defendant contends and the People properly concede, possession of a deadly weapon or display of a firearm is not an element of manslaughter in the first degree (Penal Law § 125.20). Accordingly, manslaughter in the first degree is not an armed felony offense as defined in CPL 1.20 (41), and the imposition of a minimum term of imprisonment of one half the maximum term pursuant to Penal Law § 70.02 (4) was illegal (People v Roman, 114 A.D.2d 809). Although it is undisputed that a gun was used in the killing, such use is not a statutory element of the crime (People v Rhodes, 107 A.D.2d 582; People v Gonzalez, 99 A.D.2d 1001). As these cases hold, the permissible minimum imposed period of incarceration for a first felony offender convicted of a violent felony offense is, with the exception of a class B armed felony offense, one third of the maximum (Penal Law § 70.02).
Remand is unnecessary where, as here, the defendant and the People consent to a resentencing, and it is patent that the trial court was under a misapprehension that manslaughter in the first degree was an armed felony offense when it improperly sentenced defendant to a minimum term of imprisonment which was one half of the maximum.
We have examined the other assignments of error made by defendant and find them to be without merit.
Accordingly, we direct that the sentence on the manslaughter count be reduced to 6 to 18 years, and that the convictions and sentences be otherwise affirmed.
Concur — Sandler, J.P., Sullivan, Fein and Rosenberger, JJ.