Opinion
November 21, 1985
Appeal from the Supreme Court, Bronx County (Howard E. Goldfluss, J.).
The defendant maintains, and the District Attorney concedes, that the minimum term of his sentence was excessive and illegal. Manslaughter in the first degree is a class "B" violent felony, conviction of which authorizes a minimum term of sentence not in excess of 8 1/3 years' imprisonment. (Penal Law § 70.02 [a], § 70.02 [4].) The trial court imposed an enhanced minimum term of 12 1/2 years under the misapprehension that manslaughter in the first degree was an "armed felony." Although the defendant admitted guns were used in the killings, this court has held that manslaughter in the first degree is not an armed felony offense since neither the possession nor display of a gun is a statutory element of the crime. (People v Rhodes, 107 A.D.2d 582; People v Gonzalez, 99 A.D.2d 1001; Penal Law § 125.20; CPL 1.20.) Remand is unnecessary where, as here, the People consent to a resentencing and it is patent the trial court intended to impose concurrent maximum sentences. We modify the sentences accordingly.
Concur — Kupferman, J.P., Sandler, Asch, Fein and Rosenberger, JJ.