People v. Black

111 A.D.2d 143, 489 N.Y.S.2d 520, 1985 N.Y. App. Div. LEXIS 51276

Opinion

Judgment of the Supreme Court, Bronx County (Duncan S. McNab, J.), rendered on September 2, 1982, convicting defendant, following a jury trial, of robbery in the first degree and sentencing him as a persistent violent felony offender to an indeterminate term of imprisonment of from 15 years to life, is modified, on the law, to the extent of reversing the sentence and remanding for resentence, and otherwise affirmed.

Defendant correctly contends, and the People concede, that his adjudication as a persistent violent felony offender violates Penal Law § 70.08. Since defendant committed both prior crimes before he was sentenced on either, these convictions cannot both serve as predicate violent felony convictions as defined in Penal Law §§ 70.04, 70.08 (People v Morse, 62 NY2d 205). At the time of his sentencing in connection with the instant matter, defendant had been convicted of one predicate violent felony and, therefore, should have been adjudicated a second violent felony offender. Concur — Kupferman, J. P., Sullivan, Fein, Milonas and Ellerin, JJ.