Majority
p. 83The People of the State of New York, Respondent, v Rodolfo Davila, Appellant.
Judgment, Supreme Court, New York County (Baer, J.), rendered September 15, 1983, convicting defendant, after a jury trial of rape in the first degree, sodomy in the first degree, and assault in the second degree and sentencing him to three concurrent indeterminate terms of imprisonment of 5 to 15 years, unanimously modified, on the law, by reducing the sentence on the assault conviction to 2% to 7 years, and, as modified, affirmed.
Assault in the second degree is a class D felony (Penal Law § 120.05) and as such the maximum term of imprisonment is not
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more than seven years. (Penal Law § 70.00 [2] [d].) The sentencing Judge erred in sentencing defendant to the illegal 5- to 15-year term on the assault count. Concur — Sullivan, J. P., Ross, Bloom, Kassal and Ellerin, JJ.