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People v. Solomon

Appellate Division of the Supreme Court of New York, Second Department
Dec 4, 1989
156 A.D.2d 400 (N.Y. App. Div. 1989)

Opinion

December 4, 1989

Appeal from the Supreme Court, Kings County (Goldberg, J.).


Ordered that the judgments are affirmed; and it is further,

Ordered that the amended judgment is modified, on the law, by reducing the sentence imposed from 3 1/2 years to 7 years to 2 1/3 years to 7 years; as so modified, the amended judgment is affirmed.

The record establishes that the defendant has two prior judgments of conviction for criminal possession of a weapon in the third degree under Penal Law § 265.02 (4), a class D violent felony offense (see, Penal Law § 70.02 [c]). Thus, contrary to the defendant's contention, he was properly adjudicated to be a persistent violent felony offender upon the instant convictions of robbery in the second degree, despite the fact that he had not previously been sentenced as a second felony offender (see, Penal Law § 70.08; § 70.04 [1] [b]; People v Herrar, 120 A.D.2d 614).

As the People properly concede, however, the sentence imposed upon the defendant's violation of probation, 3 1/2 to 7 years' imprisonment, was improper. The term of probation was imposed upon the defendant's conviction for criminal possession of a weapon in the third degree, a class D violent felony, which at that time was the defendant's first felony conviction. Thus, the maximum statutorily authorized sentence is 2 1/3 to 7 years. Since the record reflects that the maximum sentence was intended by the court, and contemplated by the plea bargain, we have reduced the sentence accordingly (see, People v Lawson, 122 A.D.2d 813; see also, People v Paxhia, 140 A.D.2d 962; People v Jones, 101 A.D.2d 738). Brown, J.P., Lawrence, Kooper and Balletta, JJ., concur.


Summaries of

People v. Solomon

Appellate Division of the Supreme Court of New York, Second Department
Dec 4, 1989
156 A.D.2d 400 (N.Y. App. Div. 1989)
Case details for

People v. Solomon

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. KENNETH SOLOMON…

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

Date published: Dec 4, 1989

Citations

156 A.D.2d 400 (N.Y. App. Div. 1989)

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