People v. Santana

107 A.D.2d 613, 483 N.Y.S.2d 1020, 1985 N.Y. App. Div. LEXIS 49775

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 1985
• Status: Published

Opinion

— Judgment of the Supreme Court, Bronx County (Howard Goldfluss, J.), rendered on February 10, 1983, convicting defendant, after a bench trial, of robbery in the second degree and assault in the second degree, and sentencing him, as a persistent violent felony offender, to an indeterminate term of from eight years to life, is modified, on the law, to the extent of reversing as to the sentence only and remanding defendant for resentence as a second violent felony offender, and otherwise affirmed.

The persistent violent felony provision is applicable only when each of the two or more predicate violent felony convictions, other than the first, is for crimes occurring subsequent to the imposition of the sentence on the preceding conviction. (People v Morse, 62 NY2d 205.) Since defendant herein previously pleaded guilty to three separate indictments on the same day and received concurrent terms of imprisonment of from 2 to 6 years, he should have been sentenced as a second violent felony offender on the instant case. Concur — Murphy, P. J., Kupferman, Fein and Milonas, JJ.