Opinion
May 16, 1985
Appeal from the Supreme Court, New York County, Thomas Galligan, J.
Possession of a deadly weapon or display of a firearm is not an element of either manslaughter in the first degree or attempted murder in the second degree. Consequently neither crime is an armed felony offense as defined by CPL 1.20 (41) and the imposition of a minimum term of imprisonment of one half the maximum term of 25 years pursuant to Penal Law § 70.02 (4) was illegal. ( See, People v. Lawrence, 97 A.D.2d 718.) The minimum term of imprisonment under an indeterminate sentence for a class B violent felony cannot exceed one third of the maximum term imposed. We therefore modify the judgment so as to impose minimum terms of 8 1/3 years' imprisonment on the manslaughter and attempted murder convictions.
Concur — Murphy, P.J., Sullivan, Bloom, Milonas and Ellerin, JJ.