People v. Hymes

21 A.D.3d 823, 800 N.Y.S.2d 843

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 22, 2005
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Frank Torres, J.), rendered February 13, 1997, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree and two counts of robbery in the second degree and sentencing him, as a persistent violent felony offender, to concurrent terms of nine years to life, unanimously modified, on the law, to the extent of vacating the persistent violent felony offender adjudication and sentence, and remanding for further sentencing proceedings in accordance with CPL article 400, and otherwise affirmed.

The record establishes that defendant was adjudicated as a persistent violent felony offender and that he received a sentence that would only be lawful upon such an adjudication. However, by failing to specify the subdivision of Penal Law § 265.02 applicable to defendant’s prior conviction of attempted criminal possession of a weapon, the People’s information failed to establish that this conviction qualified as a violent felony (see Penal Law § 70.02 [1] [d]). Concur—Sullivan, J.P., Ellerin, Nardelli and Sweeny, JJ.