People v. Tucker

111 A.D.2d 669, 490 N.Y.S.2d 227, 1985 N.Y. App. Div. LEXIS 49936

Opinion

Judgment, Supreme Court, Bronx County (Howard Goldfluss, J.), entered December 14, 1982, which convicted defendant, upon his plea of guilty, to the crime of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10) and sentenced him, as a persistent violent felony offender, to an indeterminate term of imprisonment of from six years to life, is unanimously modified, on the law, to the extent of reversing said sentence, vacating the finding that defendant is a persistent violent felony offender, and remanding the matter for resentencing and, except as thus modified, affirmed.

Since, as the People forthrightly concede, defendant committed the second of his violent felony offenses prior to the April 1, 1976 sentence imposed on his first violent felony offense conviction, he could not, under the holding of People v Morse (62 NY2d 205), be adjudicated a persistent violent felony offender, at least on' the basis of those two convictions. Accordingly, we vacate said finding and the sentence based thereon and remand for resentence. Concur — Kupferman, J. P., Ross, Asch, Bloom and Rosenberger, JJ.