People v. Falk

108 A.D.2d 925, 485 N.Y.S.2d 815, 1985 N.Y. App. Div. LEXIS 43259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1985
• Status: Published

Opinion

Appeal by defendant, as limited by his motion, from a sentence of the County Court, Suffolk County (Cacciabaudo, J.), imposed May 14,1984, upon his plea of guilty to sodomy in the first degree, sexual abuse in the first degree, and unlawful imprisonment in the first degree, the sentence being concurrent indeterminate terms of imprisonment of 6 to 12 years, 3xh to 7 years and 2 to 4 years, respectively, as a predicate violent felony offender.

Sentence reversed, on the law, and matter remitted to the County Court, Suffolk County, for resentencing in accordance herewith.

Defendant was sentenced as a predicate violent felony offender based upon a prior conviction for attempted sexual abuse in the first degree. That crime, however, is not classified as a violent felony offense (see, Penal Law § 70.02). While the sentences imposed would still be authorized upon conviction as a second felony offender, as the People commendably concede, the matter should be remitted to the County Court, Suffolk County, for resentencing (see, People v Jackson, 106 AD2d 93). Mollen, P. J., Titone, Gibbons and Fiber, JJ., concur.