The People of the State of New York, Respondent, v. Arthur Moore, Appellant

The People of the State of New York, Respondent, v Arthur Moore, Appellant. [692 NYS2d 610] [MAJORITY] —Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Bárbaro, J.), rendered June 9, 1997, convicting him of rape in the first degree, sexual abuse in the first degree, incest, and endangering the welfare of a child, after a nonjury trial, and sentencing him to concurrent indeterminate terms of imprisonment of 12V2 to 25 years for rape in the third degree, 3V2 to 7 years for sexual abuse in the first degree, 2 to 4 years for incest, and one year for endangering the welfare of a child. Ordered that the judgment is modified, on the law, by reducing the term of imprisonment imposed on the conviction of incest from 2 to 4 years to U/3 to 4 years; as so modified, the judgment is affirmed. The defendant’s contention that the evidence was legally insufficient to establish his guilt is unpreserved for appellate review (see, CPL 470.05 [2]; People v Tallarine, 223 AD2d 738). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]). Contrary to the defendant’s contention, the record clearly indicates that his waiver of a jury trial was a knowing and intelligent decision (see, People v Oglesby, 245 AD2d 469; People v Jackson, 220 AD2d 533). As correctly conceded by the People, the defendant’s sentence for the incest conviction should be reduced from 2 to 4 years to IV3 to 4 years. Since the defendant had no prior felony convictions, his minimum sentence should have been one-third rather than one-half of the maximum (see, Penal Law § 70.00 [3] [b]; see also, People v Glass, 242 AD2d 305; People v Toledo, 204 AD2d 667). Accordingly, the minimum sentence should be reduced from 2 years to lVs years. As the court clearly intended to sentence the defendant to the maximum possible term with respect to this count, the matter need not be remitted for resentencing (see, People v Fabian, 240 AD2d 591; People v Correll, 207 AD2d 410; People v Persaud, 166 AD2d 466). Moreover, the sentence imposed on the remaining convictions was neither harsh nor excessive (see, People v Suitte, 90 AD2d 80). The defendant’s remaining contentions are without merit. S. Miller, J. P., Goldstein, H. Miller and Smith, JJ., concur.