People v. Brown

114 A.D.2d 320, 494 N.Y.S.2d 313, 1985 N.Y. App. Div. LEXIS 52999

Opinion

Judgment, Supreme Court, New York County (Thomas B. Galligan, J.), rendered June 30, 1983, which convicted defendant, after a jury trial, of burglary in the first degree and sentenced him as a persistent violent felony offender to an indeterminate prison term of from 10 years to life, is unanimously modified, on the law, to the extent of reversing the persistent violent felony offender adjudication, vacating the sentence, remanding to the court at nisi prius for resentence of the defendant as a second violent felony offender, and otherwise affirmed.

Penal Law § 70.08 (1) defines a persistent violent felony offender as an individual who has been convicted of a violent felony offense, after having previously been subjected to two or more predicate violent felony convictions as defined in Penal Law § 70.04 (1) (b). The District Attorney acknowledges that the defendant was not the subject of two predicate convictions within the meaning of Penal Law § 70.04 (1) (b) (ii). The two prior convictions which formed the basis for the defendant’s adjudication as a persistent violent felony offender were improperly treated as separate offenses because, rather than having committed the second offense subsequent to sentencing for the preceding conviction, the defendant herein received sentences for each on the same day. (People v Morse, 62 NY2d 205, 222-225; People v Santana, 107 AD2d 613.) Accordingly, we vacate the sentence and remand for resentencing of the defendant as a second violent felony offender. Concur—Sandler, J. P., Ross, Fein and Rosenberger, JJ.