People v. Butler

203 A.D.2d 35, 610 N.Y.S.2d 477, 1994 N.Y. App. Div. LEXIS 3275

Opinion

—Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered June 19, 1992, convicting defendant, upon his plea of guilty, of three counts of robbery in the first degree and criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 15 years to life on each robbery count and 3 to 6 years on the weapon possession count, unanimously affirmed.

Defendant having failed to controvert the applicability of the conviction as a predicate violent felony at the hearing before the prior sentencing court on the ground he now specifies on appeal, the matter is not preserved for appellate review as a matter of law (People v Jenkins, 188 AD2d 354, 354-355, lv denied 81 NY2d 972; People v Jones, 183 AD2d 471, lv denied 80 NY2d 896). The issue of whether defendant’s conviction for bank robbery under 18 USC § 2113 (a) is a predicate violent felony under Penal Law § 70.04 (1) (b) is "no longer open” (People v Loughlin, 66 NY2d 633, 636), defendant having already been adjudicated a persistent violent felony offender on the basis of that conviction (People v Butler, 200 AD2d 515). The unpublished decision and order of this Court entered herein on March 29, 1994 is hereby recalled and vacated. Concur — Ellerin, J. P., Kupferman, Ross, Nardelli and Williams, JJ.