Opinion
April 5, 1994
Appeal from the Supreme Court, Bronx County (Joseph Fisch, J.).
Defendant having failed to controvert the applicability of the conviction as a predicate violent felony at the hearing before the prior sentencing court on the ground he now specifies on appeal, the matter is not preserved for appellate review as a matter of law (People v Jenkins, 188 A.D.2d 354, 354-355, lv denied 81 N.Y.2d 972; People v Jones, 183 A.D.2d 471, lv denied 80 N.Y.2d 896). The issue of whether defendant's conviction for bank robbery under 18 U.S.C. § 2113 (a) is a predicate violent felony under Penal Law § 70.04 (1) (b) is "no longer open" (People v Loughlin, 66 N.Y.2d 633, 636), defendant having already been adjudicated a persistent violent felony offender on the basis of that conviction (People v Butler, 200 A.D.2d 515). The unpublished decision and order of this Court entered herein on March 29, 1994 is hereby recalled and vacated.
Concur — Ellerin, J.P., Kupferman, Ross, Nardelli and Williams, JJ.