Opinion
May 2, 1985
Appeal from the Supreme Court, Bronx County (Anita Florio, J.).
Defendant was charged with attempted murder in the second degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree and assault in the second degree. After a bench trial, the fourth count, that of assault in the second degree, was dismissed as a lesser included count. Defendant was found guilty on the three other counts. He was sentenced to two concurrent terms of imprisonment of 7 1/2 to 15 years, as a violent felony offender, on the counts charging attempted murder in the second degree and criminal use of a firearm in the first degree, and a concurrent term of 5 to 15 years on the count of criminal possession of a weapon in the second degree.
We find the sentence on the count charging attempted murder in the second degree to have been improper, and the prosecutor now so concedes. Penal Law § 70.02 (1) (a) defines a violent felony offense and includes within its ambit attempted murder in the second degree. Subdivision (4) of that section provides that the minimum sentence to be imposed therefor "must be fixed by the court at one-third of the maximum term imposed" except in the instance where the conviction is for "a class B armed felony offense" (emphasis supplied). CPL 1.20 (41) (a) defines an armed felony as a violent felony, an element of which includes "possession * * * [of] a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged" or displays what appears to be a firearm. Neither murder nor attempted murder in the second degree as defined in Penal Law § 125.25 requires the use of a firearm. Hence, it is not an "armed" felony and the imposition of a minimum sentence in excess of one third the maximum was improper ( People v Lawrence, 97 A.D.2d 718, appeal on other grounds affd 64 N.Y.2d 200).
Accordingly, we modify to vacate the sentence on the count of attempted murder in the second degree and remand the matter to the trial court for resentence on that count. We have examined the other issues raised by defendant and find them to be without merit.
Concur — Sandler, J.P., Sullivan, Bloom and Milonas, JJ.