Opinion
August 11, 1997
Appeal from the County Court, Nassau County (Kowtna, J.).
Ordered that the judgment is modified, on the law, by reducing the indeterminate term of imprisonment imposed upon the conviction of attempted murder in the second degree from 12 1/2 to 25 years to 8 1/3 to 25 years; as so modified, the judgment is affirmed.
The defendant has not preserved for appellate review his contention that the evidence adduced by the People was legally insufficient to establish the requisite intent to kill under the count charging attempted murder in the second degree ( see, People v. Bynum, 70 N.Y.2d 858; People v. Udzinski, 146 A.D.2d 245, 250). In any event, viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of both crimes beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence ( see, CPL 470.15).
As the People correctly concede, the court imposed an illegal sentence of 12 1/2 to 25 years imprisonment upon the conviction of attempted murder in the second degree. Under the law in effect at the time the crime was committed, the court should have imposed a minimum term of imprisonment of one-third, rather than one-half, of the maximum term ( see, Penal Law former § 70.02; see also, People v. Toledo, 204 A.D.2d 667, 668). However, we otherwise decline to modify the sentence as we do not find it to be excessive ( see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
Bracken, J.P., Copertino, Altman and Florio, JJ., concur.