Opinion
November 27, 1984
Appeal from the Supreme Court, New York County (Felice K. Shea, J.).
The defendant was convicted and sentenced twice in 1974 of possession of a weapon (loaded firearm). However, sentencing of the first violent felony occurred after the defendant had committed the second felony. Therefore, according to section 70.10 (subd 1, par [c]) of the Penal Law, these two felonies only count as one conviction for the purposes of enhanced sentencing. ( People v Morse, 62 N.Y.2d 205, 223.) As a result, as conceded by the People, the defendant should have been sentenced in the instant case as a second violent felony offender instead of as a persistent violent felony offender.
Defendant's contention that enhanced sentences under the persistent violent offender statute are unconstitutional is without merit. ( People v Morse, 62 N.Y.2d 205, 217-218.) The contention of defendant's assigned counsel that defendant was coerced into entering his guilty plea is similarly without merit. The plea represented "`a voluntary and intelligent choice among the alternative courses of action open to the defendant'". ( People v Chapman, 98 A.D.2d 640, citing North Carolina v Alford, 400 U.S. 25, 31.)
We have been informed that subsequent to the argument of this appeal, the defendant was resentenced in accordance with the foregoing, and, therefore, that aspect of the appeal is moot, and we affirm as to the other points raised.
Concur — Kupferman, J.P., Sullivan, Ross and Bloom, JJ.