People v. Evans

120 A.D.2d 545, 502 N.Y.S.2d 47, 1986 N.Y. App. Div. LEXIS 56619

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.), rendered November 23, 1983, convicting him of robbery in the first degree and grand larceny in the second degree, upon a jury verdict, and sentencing him as a persistent violent felony offender to an indeterminate term of 17 years to life imprisonment on the robbery conviction, and as a second felony offender to an indeterminate term of 2 Vi to 5 years’ imprisonment on the grand larceny conviction, to run concurrently with one another.

Judgment modified, on the law, by vacating the sentence imposed. As so modified, judgment affirmed and matter remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

The offenses underlying both convictions which served as predicates for the defendant’s sentence as a persistent violent felony offender (Penal Law § 70.08) were committed prior to the defendant being sentenced for either conviction. Since these two convictions may only count as one predicate felony for the purpose of Penal Law § 70.08 (see, People v Morse, 62 NY2d 205; People v Sykes, 110 AD2d 918), the sentence on the robbery conviction must be vacated and the matter remitted for resentencing on that count, at which time the People may file a second violent felony offender statement.

Moreover, the sentence on both counts was improperly imposed absent a report of a presentence investigation of the defendant which met the criteria of CPL 390.30 (1) and (3) (see, CPL 390.20 [1]).

We have considered the defendant’s other contentions and find them to be without merit. Mollen, P. J., Weinstein, Rubin and Spatt, JJ., concur.