Opinion
May 23, 1994
Appeal from the Supreme Court, Queens County (Sherman, J.).
Ordered that the judgment is modified, on the law, by reducing the minimum term of imprisonment to 8 1/3 years; as so modified, the judgment is affirmed.
The defendant contends that the factual recitation at his plea allocution is legally insufficient to support his conviction of attempted murder in the second degree. However, since the defendant never moved to withdraw his plea or to vacate the judgment of conviction, his present claim is unpreserved for appellate review (see, People v. Lopez, 71 N.Y.2d 662; People v Pellegrino, 60 N.Y.2d 636). In any event, since the defendant pleaded guilty to a lesser crime than that charged in the indictment, under the circumstances of this case, he may not challenge the sufficiency of the plea allocution (see, People v Pelchat, 62 N.Y.2d 97; People v. Clairborne, 29 N.Y.2d 950).
The defendant contends, and the People concede, that the court erroneously imposed a sentence of 12 1/2 to 25 years rather than a sentence of 8 1/3 to 25 years. Since the defendant was not a predicate felon or an armed violent felon, his minimum sentence should have been one third rather than one half, of the maximum (see, Penal Law § 70.00; § 70.02 [4]; § 70.04 [4]). The defendant's contention that his maximum sentence is excessive is without merit (see, People v. Leon, 176 A.D.2d 294; People v Kazepis, 101 A.D.2d 816).
The defendant's remaining contention is also without merit. Ritter, J.P., Copertino, Santucci and Hart, JJ., concur.