People v. Webb

135 A.D.2d 855, 522 N.Y.S.2d 948, 1987 N.Y. App. Div. LEXIS 52794

Opinion

Appeal by the defendant from a sentence of the Supreme Court, Kings County (Egitto, J.), imposed October 9, 1985, upon his conviction of manslaughter in the first degree, after a plea of guilty, the sentence being an indeterminate term of 12 to 24 years’ imprisonment as a second violent felony offender.

Ordered that the sentence is reversed, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for resentencing of the defendant as a second felony offender.

The sentencing court erred in adjudicating and sentencing the defendant as a second violent felony offender predicated upon a 1975 conviction for robbery in the third degree, which is not a violent felony offense (see, Penal Law § 70.02 [1] [c]; People v Tomasullo, 112 AD2d 960). Nor can the defendant’s 1979 conviction for robbery in the first degree serve as the predicate violent felony conviction, since the sentence for that offense was not imposed before the defendant’s commission of the instant offense (see, Penal Law § 70.04 [1] [b] [ii]). Although the issue was neither preserved for appellate review nor raised by assigned appellate counsel, this court has exercised its discretionary authority to review the issue in the interest of justice, and has remitted the matter for the resentencing of the defendant as a second felony offender. Mollen, P. J., Bracken, Niehoff and Rubin, JJ., concur.