People v. Harris , 97 A.D.2d 594 ( 1983 )

Appeal from a judgment of the County Court of Chemung County (Kepner, Jr., J.), rendered July 8, 1982, upon a verdict convicting defendant of the crimes of attempted murder in the second degree and promoting prison contraband in the first degree. Defendant, an inmate at Elmira Correctional Facility, was indicted and charged with attempted murder in the second degree and promoting prison contraband in the first degree. The charges arose out of an incident wherein defendant struck another inmate on the head with a length of pipe causing severe injuries. Defendant admitted the incident but claimed that the victim had initiated the confrontation and that he struck the victim in self-defense. After a trial, defendant was found guilty on both counts and was sentenced to concurrent indeterminate terms of 12Yz to 25 years and SYz to 7 years. Defendant appeals, claiming that the People failed to prove the charge of attempted murder in the second degree beyond a reasonable doubt and that the sentence was harsh and excessive. Specifically, defendant contends that the proof clearly established a defense of justification. The victim testified that defendant, without provocation, struck him on the head with a pipe. Another inmate testified that he saw defendant strike the victim on the head twice with a pipe. That witness did not see what occurred prior to this, but he did testify that the victim had no object in either of his hands at the time he was hit. Defendant testified that the victim struck him with a pipe and that, in self-defense, he picked up another pipe and struck the victim. Defendant produced three witnesses who also testified that the victim struck defendant first. However, there were inconsistencies in the testimony of the defense witnesses. Moreover, the testimony of each of the defense witnesses was impeached by prior inconsistent statements. Resolution of the facts in this case thus turns on an assessment of the credibility of the witnesses, a matter particularly within the province of the jury as trier of fact (see People v Siu Wah Tse, 91 AD2d 350; People v Samuels, 68 AD2d 663, affd 50 NY2d 1035). Based upon all of the testimony in the record, it cannot be said that the jury erred in rejecting the justification defense. As for defendant’s contention that the sentence imposed for attempted second degree murder was harsh and excessive, we find it unnecessary to consider this point since it appears that the sentence imposed is legally improper. Defendant was sentenced as a violent felony offender (Penal Law, § 70.02) and was given an increased minimum period of imprisonment on the ground that he committed an armed felony (Penal Law, § 70.02, subd 4). The People commendably point out that, since defendant used a pipe and not a firearm, this crime does not come within the definition of an “armed felony” (CPL 1.20, subd 41). While the sentence imposed may have been appropriate for a second felony offender (Penal Law, § 70.04, subd 3, par [a]; subd 4), it is clear from the sentencing minutes that second felony offender status was not sought in this case. Additionally, it appears that the minimum period of imprisonment of the sentence imposed on the conviction of first degree promoting prison contraband was improperly fixed at one half the maximum. Therefore, the matter must be remitted for resentencing. Judgment modified, on the law, by vacating the sentence, matter remitted to the County Court of Chemung County for resentencing, and, as so modified, affirmed. Mahoney, P. J., Mikoll, Yesawich, Jr., Weiss and Levine, JJ., concur.