| People v Velazquez |
| 2009 NY Slip Op 00232 [58 AD3d 646] |
| January 13, 2009 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York,
Respondent, v Wilfredo Velazquez, Appellant. |
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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 of a weapon in the third degree, upon a jury verdict, and imposing an indeterminate sentence of 15 years 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, by vacating the adjudication of the defendant as a persistent felony offender, adjudicating him a second felony offender, and reducing his sentences from an indeterminate term of 15 years to life imprisonment to an indeterminate term of 3½ to 7 years of imprisonment on the count of burglary in the third degree and from an indeterminate term of 15 years to life imprisonment to an indeterminate term of 3½ to 7 years of imprisonment on the count of criminal possession 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, although warranting the defendant's adjudication as a second felony offender, did not warrant his adjudication 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 and criminal possession of a weapon in the third [*2]degree—both class D felonies—to concurrent indeterminate terms of imprisonment of 3½ to 7 years, which is the maximum permissible sentence 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 not be reached in light of our determination. Mastro, J.P., Fisher, Miller and Carni, JJ., concur.