| People v Velazquez |
| 2009 NY Slip Op 00232 [58 AD3d 646] |
| January 13, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Wilfredo Velazquez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Howard D. McCallum of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.),rendered July 17, 2006, convicting him of burglary in the third degree and criminal possession ofa weapon in the third degree, upon a jury verdict, and imposing an indeterminate sentence of 15years to life imprisonment on each count, to run concurrently with each other.
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, byvacating the adjudication of the defendant as a persistent felony offender, adjudicating him asecond felony offender, and reducing his sentences from an indeterminate term of 15 years to lifeimprisonment to an indeterminate term of 3½ to 7 years of imprisonment on the count ofburglary in the third degree and from an indeterminate term of 15 years to life imprisonment toan indeterminate term of 3½ to 7 years of imprisonment on the count of criminalpossession of a weapon in the third degree, to run concurrently with each other.
The totality of the evidence adduced at the persistent felony offender hearing, althoughwarranting the defendant's adjudication as a second felony offender, did not warrant hisadjudication as a persistent felony offender (see Penal Law § 70.10 [2]; People v Greene, 57 AD3d 1004 [2008]). Accordingly, we reduce the sentences imposed for burglary in the third degree andcriminal possession of a weapon in the third [*2]degree—both class D felonies—to concurrentindeterminate terms of imprisonment of 3½ to 7 years, which is the maximum permissiblesentence for a second felony offender convicted of those crimes (see Penal Law §70.06 [3] [d]).
The defendant's remaining contentions are without merit, do not require reversal, or need notbe reached in light of our determination. Mastro, J.P., Fisher, Miller and Carni, JJ., concur.