Summary
In People v. Gonzalez (99 A.D.2d 1001), this court held that manslaughter in the first degree is not an armed violent felony offense in that neither the possession nor display of a gun constitutes an element of the crime.
Summary of this case from People v. RhodesOpinion
March 20, 1984
Judgment, Supreme Court, Bronx County (Schackman, J.), rendered November 17, 1981, convicting defendant, upon his plea of guilty, of manslaughter in the first degree and sentencing him to an indeterminate term of from 12 1/2 to 25 years, unanimously modified, on the law, to the extent of reversing the sentence and imposing a sentence of from 8 1/3 to 25 years, and, except as thus modified, affirmed. ¶ With commendable candor the District Attorney concedes that defendant's sentence of 12 1/2 to 25 years on his conviction of manslaughter in the first degree, a class B violent felony offense, was illegal. Absent a finding that defendant was a predicate felon, not the case here, the minimum period of imprisonment that may be imposed for a violent felony offense cannot exceed one third of the maximum, unless the sentence is for a conviction of a class B armed felony offense. (Penal Law, § 70.02, subd 4.) Manslaughter in the first degree is not an armed felony offense since neither the possession nor the display of a gun is an element of the crime. (See Penal Law, § 125.20.) Although defendant's use of a gun was a factual element of the crime, since he admitted killing his victims by shooting them with a gun, it was not a statutory element. Since the court obviously intended to sentence defendant to the maximum term allowable, a remand for resentence is unnecessary and we modify accordingly.
Concur — Sandler, J.P., Sullivan, Carro, Bloom and Fein, JJ.