| People v Winfield |
| 2011 NY Slip Op 02913 [83 AD3d 745] |
| April 5, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tremayne Winfield, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Sandra Courbois of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Hudson, J.),rendered November 10, 2009, convicting him of criminal possession of a weapon in the seconddegree (two counts), criminal possession of a weapon in the third degree, assault in the seconddegree, and resisting arrest, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed on theconviction of criminal possession of a weapon in the third degree; as so modified, the judgmentis affirmed, and the matter is remitted to the County Court, Suffolk County, for resentencing onthat count.
As the People correctly concede, the determinate sentence of seven years of imprisonmentwith five years of postrelease supervision, imposed on the defendant as a second felony offenderupon his conviction of criminal possession of a weapon in the third degree under Penal Law§ 265.02 (1), a nonviolent class D felony, was illegal (see Penal Law § 70.06[3] [d]; [4] [b]). Thus, we vacate the sentence imposed on that conviction, and remit the matter tothe County Court, Suffolk County, for resentencing thereon (see People v Jackson, 65 AD3d 1164, 1165 [2009]; People v Switzer, 55 AD3d 1394,1395 [2008]; People v Penna, 47AD3d 844, 845 [2008]). Mastro, J.P., Angiolillo, Balkin, Lott and Miller, JJ., concur.