People v. Crawford

123 A.D.2d 522, 506 N.Y.S.2d 986, 1986 N.Y. App. Div. LEXIS 60287

Opinion

Order unanimously affirmed. Memorandum: We note that Supreme Court erred in characterizing defendant’s CPL 440.20 motion as one to vacate judgment under CPL 440.10 and, accordingly, applied an incorrect standard in determining the motion. Defendant concedes on appeal, however, that the record before us is sufficient to resolve the motion using the appropriate standard. Defendant was properly sentenced as a second violent felony offender on the basis that he had a prior conviction in 1975 for robbery in the second degree (see, People v Morse, 62 NY2d 205). It was appropriate, therefore, to deny his motion to vacate the sentence. (Appeal from order of Supreme Court, Monroe County, Kennedy, J.—CPL 440.20). Present—Dillon, P. J., Denman, Green, Pine and Balio, JJ.