Opinion
July 6, 1987
Appeal from the Supreme Court, Kings County (Owens, J.).
Ordered that the judgment is modified, on the law, by reducing the minimum term of the sentence imposed from 4 1/2 to 3 years; as so modified, the judgment is affirmed.
At the time of sentencing, the court sentenced the defendant predicated upon the alleged fact that robbery in the first degree, pursuant to Penal Law § 160.15 (3) was an armed felony. The defense counsel only challenged the sentence on the ground that the court failed to set forth any special circumstances for imposing a minimum term of imprisonment of one half of the maximum term. As conceded by the People, the court erred in imposing one half of the maximum term since "the crime of robbery in the first degree as defined in Penal Law § 160.15 (3) is not an armed felony since neither the possession nor display of a gun is a statutory element of that crime" (People v. Thorpe, 129 A.D.2d 822, 823).
Accordingly, the minimum term of the defendant's sentence should have been one third the maximum (Penal Law § 70.02 [a]; [4]) and we have so modified the sentence. Thompson, J.P., Lawrence, Rubin, Kunzeman and Sullivan, JJ., concur.