Opinion
January 6, 1994
Appeal from the Supreme Court, Bronx County (Burton Hecht, J.).
As the People concede, defendant's conviction, in 1978, for attempted criminal possession of a weapon in the third degree was not for a violent felony offense. Moreover, although the 1978 conviction served as the basis for enhanced sentencing in 1983, defendant admitted in that proceeding only that the 1978 conviction was a predicate felony, not that it was a violent felony offense. Therefore, defendant has not waived the right to challenge the 1978 conviction as a violent felony offense (see, CPL 400.16; 400.15 [8]), and such conviction cannot serve as the basis for his sentencing in this matter as a persistent violent felon. Although this precise claim was preserved by the nature of defendant's objection at sentence, he never advanced this argument on appeal. We reach it, nevertheless, in the interest of justice.
Concur — Murphy, P.J., Sullivan, Kupferman and Nardelli, JJ.