People v. Correa

103 A.D.2d 753, 477 N.Y.S.2d 222, 1984 N.Y. App. Div. LEXIS 19357

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Cooperman, J.), rendered April 20, 1982, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The People cross-appeal from so much of the same judgment as declined to sentence defendant as a persistent felony offender. H Judgment modified, on the law, by vacating the sentence. As so modified, judgment affirmed and matter remitted to the Supreme Court, Kings County, for resentencing in accordance herewith. HAt the time of sentencing on the instant charge, defendant had prior 1976 convictions for attempted murder in the second degree and robbery in the first degree, which crimes are designated as violent felony offenses in section 70.02 (subd 1, par [a]) of the Penal Law. Criminal Term refused to regard these prior convictions as predicate violent felony convictions which would render defendant a persistent violent felony offender (Penal Law, § 70.08, subd 1, par [a]; § 70.04, subd 1, par [b]; § 70.02). The court reasoned that the prior crimes were committed before 1978, the year the relevant statutes were enacted. This reasoning is erroneous. If a defendant’s prior conviction is for a crime designated as a violent felony offense in section 70.02 of the Penal Law, it may serve as a predicate violent felony for sentencing purposes, regardless of whether it was committed before or after 1978 (see People v Morse, 62 NY2d 205; People v Balfour, 95 AD2d 812). We have considered defendant’s other contentions upon appeal and find them to be without merit. Mollen, P. J., Titone, Lazer and Thompson, JJ., concur.