Opinion
July 14, 1986
Appeal from the Supreme Court, Kings County (Curci, J.).
Judgment modified, on the law, by vacating the sentences imposed upon the convictions of robbery in the second degree. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Kings County, for a hearing pursuant to CPL 400.15 and for resentencing on those counts.
Viewing the evidence in the light most favorable to the People, as we must, and bearing in mind that credibility is primarily a matter to be determined by the trier of facts, we find that there was sufficient evidence in quantity and quality to support the verdict (see, People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932).
The defendant's sentence of 12 1/2 to 25 years' imprisonment for his conviction of robbery in the first degree was within the parameters of the sentencing statute as that crime is a class B violent felony offense (see, Penal Law § 70.02) as well as an armed felony offense (see, CPL 1.20) for which the court may impose a minimum term which is between one third and one half of the maximum term imposed (see, Penal Law § 70.02; § 70.02 [3]). The defendant's claim that this sentence is excessive lacks merit (see, People v Suitte, 90 A.D.2d 80).
The People concede that the defendant was improperly sentenced to three concurrent terms of 7 1/2 to 15 years on his convictions of three counts of robbery in the second degree. It appears that the defendant was sentenced as a second violent felony offender without the court substantially complying with the procedures set forth in CPL 400.15 (see, e.g., People v Morrison, 100 A.D.2d 976); he must now be resentenced on those counts in conformance therewith.
We have considered the defendant's remaining contention and find it to be without merit. Mollen, P.J., Lazer, Thompson and Kunzeman, JJ., concur.