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People v. Smith

Appellate Division of the Supreme Court of New York, First Department
Feb 26, 1985
108 A.D.2d 686 (N.Y. App. Div. 1985)

Opinion

February 26, 1985

Appeal from the Supreme Court, New York County (Rothwax, J.).


Defendant was sentenced to the minimum legal sentence allowable, 2 to 4 years, on the understanding that he was a second violent felony offender. As the People commendably concede, however, defendant was incorrectly sentenced since the crime of attempted assault in the second degree (Penal Law § 110.00, 120.05 Penal [6]), the class E felony to which he pleaded guilty, is not a violent felony offense. Of the class E felonies, only the attempt to commit certain categories of criminal possession of a weapon in the third degree is considered a violent felony offense. ( See, Penal Law § 70.02 [d].) Although a 2- to 4-year sentence is not beyond the legal maximum for a predicate felony conviction such as is here involved, the court may have wished to impose the minimum sentence allowable. The minimum punishment for a second felony offender convicted of a class E felony is 1 1/2 to 3 years. Accordingly, we vacate the sentence and remand for resentence. ( See, People v Hulsen, 85 A.D.2d 532.) In so doing we express no opinion as to the sentence imposed or to be imposed.

Concur — Kupferman, J.P., Sullivan, Ross and Carro, JJ.


Summaries of

People v. Smith

Appellate Division of the Supreme Court of New York, First Department
Feb 26, 1985
108 A.D.2d 686 (N.Y. App. Div. 1985)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES SMITH…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 26, 1985

Citations

108 A.D.2d 686 (N.Y. App. Div. 1985)

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