People v. Battle

133 A.D.2d 593, 520 N.Y.S.2d 155, 1987 N.Y. App. Div. LEXIS 51634

Opinion

Judgment of the Supreme Court, Bronx County (Joseph Cerbone, J.), rendered on March 19, 1984, convicting defendant, upon his pleas of guilty, under indictment number 1070/1983, of two counts of robbery in the first degree, robbery in the second degree, two counts of criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree, and under indictment number 2705/1983, of robbery in the first degree, robbery in the second degree and criminal use of a firearm in the first degree, and sentencing him as a persistent violent felony offender to concurrent terms of 10 years to life on each count of both indictments, is modified, on the law, to reverse and vacate the sentences and remand for resentencing, and otherwise affirmed.

Defendant was declared to be a persistent violent felony offender based upon two prior convictions for which he was sentenced, on the same day, to concurrent terms of imprisonment. However, the Legislature did not intend the persistent violent felony law to apply unless each of the two or more predicate violent felony convictions other than the first was for a felony which occurred after sentence had been imposed for the conviction which preceded it (People v Morse, 62 NY2d 205). Accordingly, as the People concede, the defendant was improperly sentenced as a persistent violent felony offender and we remand for his resentencing as a second violent felony offender. Concur—Sandler, J. P., Ross, Asch, Kassal and Ellerin, JJ.