People v. Mason

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (De Lury, J.), rendered July 7, 1983, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and sentencing him to a term of 1 Vi to 3 years’ imprisonment.

Ordered that the judgment is modified, on the law, by reducing the defendant’s sentence from a term of imprisonment of lVi to 3 years to a term of imprisonment of 1 to 3 years. As so modified, the judgment is affirmed.

By pleading guilty, the defendant waived his right to contest the denial of his motion pursuant to CPL 30.30 (see, People v O'Brien, 56 NY2d 1009; People v Suarez, 55 NY2d 940). Further, by failing to move to withdraw his plea prior to sentencing, the issue of whether that motion was properly denied is not preserved for appellate review (see, People v Pellegrino, 60 NY2d 636).

As the defendant asserts, and the People concede, the defendant’s sentence of IV2 to 3 years on his conviction was illegal, as attempted criminal possession of a weapon in the third degree is not a class D armed felony offense (see, Penal Law § 70.02 [4]). The minimum sentence should have been one year (see, Penal Law § 70.00 [3] [b]). Thompson, J. P., Niehoff, Weinstein and Spatt, JJ., concur.