People v. Cummings

111 A.D.2d 622, 490 N.Y.S.2d 9, 1985 N.Y. App. Div. LEXIS 49887

Opinion

Judgment, Supreme Court, Bronx County (Grey, J.), rendered June 30, 1983, convicting defendant of robbery in the first degree and criminal possession of a weapon in the third degree and sentencing him, as a persistent felony offender, to concurrent indeterminate terms of imprisonment of from 15 years to life and 6 years to life, respectively, unanimously modified, on the law, to the extent of reversing said sentences, vacating the finding that defendant is a persistent violent felony offender, and remanding the matter for resentencing and, except as thus modified, affirmed.

Since, as the People forthrightly concede, defendant committed the second of his violent felony offenses on January 8,1975, which was prior to the January 24,1975 sentence imposed on his first violent felony offense conviction, he could not, under the holding of People v Morse (62 NY2d 205), be adjudicated a persistent violent felony offender, at least on the basis of those two convictions. Accordingly, we vacate said finding and the sentences based thereon, and remand for resentence. Concur — Sandler, J. P., Sullivan, Carro, Lynch and Rosenberger, JJ.