PEOPLE v. SMITH

Defendant was sentenced to the minimum legal sentence allowable, 2 to 4 years, on the understanding that he was a second violent felony offender. As the People commendably concede, however, defendant was incorrectly sentenced since the crime of attempted assault in the second degree (Penal Law § 110.00, 120.05 Penal [6]), the class E felony to which he pleaded guilty, is not a violent felony offense. Of the class E felonies, only the attempt to commit certain categories of criminal possession of a weapon in the third degree is considered a violent felony offense. ( See, Penal Law § 70.02 [d].) Although a 2- to 4-year sentence is not beyond the legal maximum for a predicate felony conviction such as is here involved, the court may have wished to impose the minimum sentence allowable. The minimum punishment for a second felony offender convicted of a class E felony is 1 1/2 to 3 years. Accordingly, we vacate the sentence and remand for resentence. ( See, People v Hulsen, 85 A.D.2d 532.) In so doing we express no opinion as to the sentence imposed or to be imposed.

Concur — Kupferman, J.P., Sullivan, Ross and Carro, JJ.