People v. Whitaker

121 A.D.2d 239, 503 N.Y.S.2d 275, 1986 N.Y. App. Div. LEXIS 58229

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 1986
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Leon Becker, J.), rendered on April 5, 1984, convicting defendant, after a jury trial, of robbery in the first degree and sentencing him, as a persistent violent felony offender, to an indeterminate prison term of 12V2 years to life, modified, on the law, to vacate the sentence and remand for resentencing, and otherwise affirmed.

As the People acknowledge, the defendant should have been sentenced as a predicate violent felony offender, and not as a persistent violent felony offender. In the persistent violent felony offender statement filed by the People, on the basis of which the defendant was erroneously sentenced, there was an inadvertent failure to appreciate that the first conviction described in this statement was imposed after the commission of the second violent felony. (See, Penal Law § 70.08; People v Morse, 62 NY2d 205.)

We have considered defendant’s other claims of error and find these to be without merit. Concur — Murphy, P. J., Sandler, Asch, Kassal and Wallach, JJ.