Summary
In Bergos, the defendants predicate conviction fell within the Behlog holding, but he did not object when he was adjudicated as a second felony offender based upon said judgment.
Summary of this case from People v. WilsonOpinion
February 19, 1991
Appeal from the Supreme Court, Kings County (Hellenbrand, J.).
Ordered that the judgment is modified, as an exercise of discretion in the interest of justice, by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to Supreme Court, Kings County, for resentencing.
The record supports a finding that the gun that was seized by police after the defendant was stopped for a traffic infraction was in plain view in the defendant's car (see, People v Thomas, 168 A.D.2d 655). Accordingly, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress the weapon.
The defendant argues that he was improperly sentenced as a second felony offender because his prior conviction was for a misdemeanor. The defendant's status as a second felony offender was based upon his prior conviction of attempted grand larceny in the second degree. Under amendments to the Penal Law which took effect prior to sentencing on that prior conviction (see, Penal Law § 155.30, 155.35 Penal, as amended by L 1986, ch 515; People v Behlog, 74 N.Y.2d 237) the acts for which he was convicted were reclassified as attempted grand larceny in the fourth degree, a class A misdemeanor. Although the defendant did not object to his adjudication as a second felony offender, we exercise our interest of justice jurisdiction to modify the sentence. Thompson, J.P., Brown, Balletta, Miller and O'Brien, JJ., concur.