Opinion
December 1, 1986
Appeal from the Supreme Court, Kings County (De Lury, J.).
Ordered that the judgment is modified, on the law, by reducing the defendant's sentence from a term of imprisonment of 1 1/2 to 3 years to a term of imprisonment of 1 to 3 years. As so modified, the judgment is affirmed.
By pleading guilty, the defendant waived his right to contest the denial of his motion pursuant to CPL 30.30 (see, People v O'Brien, 56 N.Y.2d 1009; People v. Suarez, 55 N.Y.2d 940). Further, by failing to move to withdraw his plea prior to sentencing, the issue of whether that motion was properly denied is not preserved for appellate review (see, People v. Pellegrino, 60 N.Y.2d 636).
As the defendant asserts, and the People concede, the defendant's sentence of 1 1/2 to 3 years on his conviction was illegal, as attempted criminal possession of a weapon in the third degree is not a class D armed felony offense (see, Penal Law § 70.02). The minimum sentence should have been one year (see, Penal Law § 70.00 [b]). Thompson, J.P., Niehoff, Weinstein and Spatt, JJ., concur.