People v. Little

104 A.D.2d 766, 480 N.Y.S.2d 723, 1984 N.Y. App. Div. LEXIS 20254

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 16, 1984
• Status: Published

Opinion

— Judgment of the Supreme Court, New York County (N. Ryp, J.), rendered April 21, 1983, which convicted defendant, after pleas of guilty, of two counts of attempted robbery in the first degree (Penal Law, §§ 110.00, 160.15) and sentenced him as a persistent violent felony offender to two concurrent indeterminate terms of imprisonment of from 8 years to life, is unanimously modified, on the law, to reverse as to the adjudication of defendant as a persistent violent felony offender, vacate the sentences imposed, remand to the Supreme Court, New York County, for resentencing of defendant as a second violent felony offender, and otherwise affirmed.

In order for a defendant’s prior violent felony offenses to constitute the predicate for his punishment as a persistent violent felony offender, sentence must have been imposed on one prior violent felony before commission of a second prior violent felony (People v Morse, 62 NY2d 205). In this case, sentences were imposed on defendant’s two prior violent felonies on April 4,1975. Defendant was not sentenced on one of his prior violent felonies before he committed his second prior violent felony. Accordingly, as recognized by the District Attorney, defendant should have been sentenced on his present crimes as a second violent felony offender, not as a persistent violent felony offender. Concur — Kupferman, J. P., Ross, Asch and Bloom, JJ.