Opinion
August 4, 1986
Appeal from the Supreme Court, Kings County (Kramer, J.).
Judgment modified, on the law, by reducing the minimum terms of imprisonment imposed on the burglary, rape and sodomy counts from 12 1/2 years to 8 1/3 years. As so modified, judgment affirmed.
The sentencing court improperly imposed a minimum term of 12 1/2 years' imprisonment on the rape, sodomy and burglary counts. Because rape in the first degree (Penal Law § 130.35) and sodomy in the first degree (Penal Law § 130.50) are not armed violent felony offenses and because the defendant was not charged with that subdivision of burglary in the first degree which entails the display of a firearm (Penal Law § 140.30), the defendant's minimum sentence on those counts should have been one third the maximum, or 8 1/3 years' imprisonment. The judgment is in all other respects affirmed. Niehoff, J.P., Rubin, Eiber and Kooper, JJ., concur.