Opinion
February 22, 1999
Appeal from the County Court, Nassau County.
Upon the papers filed in support of the application, and no papers having been filed in opposition thereto, it is
Ordered that the application is granted, and, upon reargument, it is
Ordered that the unpublished decision and order of this Court dated November 2, 1998, is recalled and vacated, and the following decision and order is substituted therefor:
Appeal by the defendant from a judgment of the County Court, Nassau County (Kowtna, J.), rendered October 9, 1996, convicting him of robbery in the second degree (two counts), burglary in the second degree, criminal possession of a weapon in the fourth degree, unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, and resisting arrest, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence, identification testimony, and a statement he made to the police.
Ordered that the matter is remitted to the County Court, Nassau County, to resettle the sentence minutes, and the appeal is held in abeyance in the interim. The County Court, Nassau County, is to file the resettled sentence minutes with this court with all convenient speed.
The transcript of the sentence minutes indicates that the defendant was sentenced to an indeterminate term of imprisonment of 2 to 4 years for unlawful imprisonment in the first degree, a class E felony, an illegal sentence because the minimum term fixed by the court exceeded one-third of the maximum term imposed (see, Penal Law § 70.00 [e]; [3] [b]). Nevertheless, the order of sentence and commitment indicates that the sentence imposed was an indeterminate term of 1 1/3 to 4 years, a sentence which is not illegal.
In light of this discrepancy, the matter must be remitted to the County Court, Nassau County, to resettle the sentence minutes to reflect the sentence actually imposed by that court (see, People v. Banks, 234 A.D.2d 311; People v. Locke, 154 A.D.2d 622).
O'Brien, J. P., Joy, Friedmann and Goldstein, JJ., concur.