People v. Johnson

210 A.D.2d 257, 620 N.Y.S.2d 251

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered July 12, 1993, convicting him of robbery in the second degree (two counts), upon a jury verdict, and sentencing him to two concurrent indeterminate terms of fifteen years to life imprisonment.

Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the sentences imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing.

The defendant’s claims are either unpreserved for review (CPL 470.05 [2]) or without merit in light of the overwhelming evidence of the defendant’s guilt and the court’s curative charge (see, People v Crimmins, 36 NY2d 230, 241-242; People v DeFigueroa, 182 AD2d 772, 773; People v Perry, 172 AD2d 858; People v Valerio, 167 AD2d 439, 440; People v Jackson, 127 AD2d 696, 697). In view of the People’s concession that the defendant was improperly sentenced as a persistent violent felony offender, we remit the matter to the Supreme Court for resentencing (see, People v Morse, 62 NY2d 205, 226; People v Martinez, 207 AD2d 912; People v Melero, 182 AD2d 839). Bracken, J. P., Miller, Ritter and Goldstein, JJ., concur.