People v. Bermudez

200 A.D.2d 392, 606 N.Y.S.2d 610, 1994 N.Y. App. Div. LEXIS 125

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 1994
• Status: Published

Opinion

—Motion for reargument is granted to the extent of recalling and vacating the unpublished decision and order of this Court entered on October 26, 1993 (Appeal No. 49691) and a new decision and order decided simultaneously herewith.

Judgment, Supreme Court, Bronx County (Burton Hecht, J.), rendered October 24, 1991, convicting defendant, upon a guilty plea, of attempted criminal possession of a weapon in the third degree and sentencing him as a persistent violent felony offender to an indeterminate term of from four years to life imprisonment, modified, on the law and the facts and as a matter of discretion in the interest of justice, the sentence vacated and the matter remanded for further proceedings.

As the People concede, defendant’s conviction, in 1978, for attempted criminal possession of a weapon in the third degree was not for a violent felony offense. Moreover, although the 1978 conviction served as the basis for enhanced sentencing in 1983, defendant admitted in that proceeding only that the 1978 conviction was a predicate felony, not that it was a violent felony offense. Therefore, defendant has not waived the right to challenge the 1978 conviction as a violent felony offense (see, CPL 400.16 [2]; 400.15 [8]), and such conviction cannot serve as the basis for his sentencing in this matter as a persistent violent felon. Although this precise claim was preserved by the nature of defendant’s objection at sentence, he never advanced this argument on appeal. We reach it, nevertheless, in the interest of justice. Concur — Murphy, P. J., Sullivan, Kupferman and Nardelli, JJ.