Opinion
November 6, 1989
Appeal from the Supreme Court, Kings County (Tomei, J.).
Ordered that the judgment is modified, on the law, by reducing the minimum term of the sentences imposed upon the defendant's convictions of attempted murder in the second degree from 12 1/2 to 8 1/3 years' imprisonment; as so modified, the judgment is affirmed.
Contrary to the defendant's contentions, the court properly admitted into evidence an inculpatory statement inadvertently overheard by a police officer as the defendant spoke to his mother on the telephone, which statement the defendant repeated to the officer after he had completed the call (see, People v Harris, 57 N.Y.2d 335, 342-343, cert denied 460 U.S. 1047). The record reveals that the defendant, who was aware of the officer's presence only 10 feet away, spoke spontaneously, and not as a result of any police conduct or questioning (see, People v Maerling, 46 N.Y.2d 289, 302-303; People v Lynes, 49 N.Y.2d 286, 295; cf., People v Ferro, 63 N.Y.2d 316, 322, cert denied 472 U.S. 1007; see also, People v Jones, 140 A.D.2d 372, 373; People v Sobolof, 109 A.D.2d 903, 904-905). Moreover, the record establishes that the defendant's making of the telephone call was not attributable to police suggestion or prompting, but rather was the product of an unsolicited request by the defendant himself.
We find, however, that the court erred in imposing a minimum term that was one half of the maximum term upon the defendant's conviction for attempted murder in the second degree. That crime is not an armed felony offense by definition and the defendant was a first felony offender (see, Penal Law § 70.02; §§ 110.00, 125.25; CPL 1.20; People v Bartlett, 146 A.D.2d 705, 706; People v Newton, 138 A.D.2d 415). Accordingly, the minimum term of the sentence on the attempted murder counts should be reduced from 12 1/2 to 8 1/3 years' imprisonment. In all other respects, however, the defendant's sentence was proper (see, People v Suitte, 90 A.D.2d 80).
We have considered the defendant's remaining contention and find it to be without merit. Mollen, P.J., Lawrence, Eiber and Kooper, JJ., concur.