Opinion
May 31, 2001.
Judgment, Supreme Court, Bronx County (Robert Seewald, J.), rendered May 15, 1997, convicting defendant, after a nonjury trial, of robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 8 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the sentence and remanding for resentencing in accordance with CPL 400.15 and 400.16, and otherwise affirmed.
Nhu P. Nguyen, for respondent.
Richard A. Glovin, for defendant-appellant.
Before: Williams, J.P., Lerner, Rubin, Saxe, Buckley, JJ.
Given the complete absence of any indication in the record that the sentencing court followed any of the procedures required by CPL 400.15 and 400.16 for sentencing defendant as a persistent felony violent offender, we vacate the sentence and remand for resentencing in the interest of justice.
Defendant's claim that his on-the-scene identification by the complainant should have been suppressed is not properly before this Court. This claim was raised in a CPL 440.10 motion, which was denied, and defendant failed to obtain leave to appeal (see, People v. Bailey, 275 A.D.2d 663, lv denied, A.D.2d [Dec 28, 2000], 2000 N Y LEXIS 4180). In any event, this claim was expressly waived at trial (People v. Kassebaum, 95 N.Y.2d 611, 621-622) and is without merit (People v. Duuvon, 77 N.Y.2d 541).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.