| People v Jones |
| 2014 NY Slip Op 04377 [118 AD3d 1361] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRocky Jones, Also Known as Rockie Jones, Appellant. (Appeal No.2.) |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered October 12, 2010. The judgment revoked defendant's sentence of probation andimposed a sentence of imprisonment.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence imposed for criminal possession of a weapon in thethird degree and as modified the judgment is affirmed, and the matter is remitted to ErieCounty Court for further proceedings in accordance with the following memorandum:Defendant appeals from a judgment entered upon his admission that he violated the termsand conditions of his probation, revoking his probation and sentencing him to concurrentterms of incarceration on the underlying conviction of attempted assault in the seconddegree (Penal Law §§ 110.00, 120.05 [2]) and criminal possession of aweapon in the third degree (§ 265.02 [1] [CPW 3d]). As the Peoplecorrectly note, CPW 3d under section 265.02 (1) is not a violent felony (see PenalLaw § 70.02 [former (1) (c)]), and, therefore the determinate term ofincarceration imposed on that count of the indictment is illegal (see§ 70.00 [2] [d]; [3] [b]). " 'Although this issue was not raised beforethe [sentencing] court or [by defendant] on appeal, we cannot allow an [illegal] sentenceto stand' " (People vDavis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]). Wetherefore modify the judgment by vacating the sentence, and we remit the matter toCounty Court to afford defendant the opportunity to accept an amended lawful sentenceor to withdraw his admission to the violation of probation (see People v Dexter, 104AD3d 1184, 1185 [2013]).
Defendant contends that the sentence is unduly harsh and severe. Inasmuch as thereis no waiver of the right to appeal applicable to the revocation of probation contained inthis record on appeal, we address defendant's contention on the merits. We conclude,however, that the sentence is not unduly harsh or severe. Present—Scudder, P.J.,Fahey, Peradotto, Valentino and DeJoseph, JJ.