           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

969
KA 15-00309
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

CLAYTON L. BROWN, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered May 14, 2014. The judgment convicted defendant,
upon his plea of guilty, of attempted robbery in the first degree,
criminal possession of a weapon in the third degree and aggravated
unlicensed operation of a motor vehicle in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence imposed on
count three of the indictment and imposing a definite sentence of 180
days of imprisonment on that count, to run concurrently with the
sentences imposed on counts one and two, and as modified the judgment
is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted robbery in the first degree
(Penal Law §§ 110.00, 160.15 [3]), criminal possession of a weapon in
the third degree (§ 265.02 [1]) and aggravated unlicensed operation of
a motor vehicle in the second degree (Vehicle and Traffic Law § 511
[2] [a] [ii]). As the People correctly concede, the sentence imposed
on count three of the indictment, i.e., a one-year definite term of
imprisonment for aggravated unlicensed operation of a motor vehicle in
the second degree, is illegal (see § 511 [2] [b]). We therefore
modify the judgment by vacating the sentence imposed on that count and
imposing a definite sentence of 180 days of imprisonment, to run
concurrently with the sentences on the remaining counts. We reject
defendant’s further contention that the sentences imposed on the
remaining counts are unduly harsh and severe.



Entered:    October 2, 2015                        Frances E. Cafarell
                                                   Clerk of the Court
