Summary
holding that the fact that defendant was not sentenced on his second violent felony conviction did not prevent trial judge from sentencing defendant as a persistent violent felony offender under § 70.08
Summary of this case from Ramos v. RacetteOpinion
November 20, 1997
Appeal from the Supreme Court, New York County (Alvin Schlesinger, J.).
Defendant contends that the court erred in sentencing him as a persistent violent felony offender since he was not sentenced as a second violent felony offender for the second underlying violent felony conviction that formed the basis of the adjudication (Penal Law § 70.04, 70.08 Penal). However, since defendant stood convicted of a violent felony, had been previously convicted of two violent felony offenses in that he had committed the second violent felony offense after he had been sentenced for his first one, and had committed his third violent felony offense after he had been sentenced for the first two, he was properly sentenced as a persistent violent felony offender. While as a result of his use of aliases he escaped being sentenced as a second violent felony offender for his second violent felony conviction in 1989, neither People v. Morse ( 62 N.Y.2d 205) nor Penal Law § 70.08 require that a defendant be adjudicated a second violent felony offender in order to be sentenced as a persistent violent felony offender for his third violent felony conviction. Morse addresses the "sequentiality" of the sentences (62 N.Y.2d, supra, at 219), rather than the nature or severity of the sentences.
Contrary to defendant's contention, the record reveals that as a condition of his plea, he knowingly, intelligently and voluntarily waived appellate review of the suppression ruling ( People v. Seaberg, 74 N.Y.2d 1; People v. Burney, 235 A.D.2d 264, lv denied 89 N.Y.2d 1010; People v. Johnson, 158 A.D.2d 620), which was correct in any event.
We have considered defendant's other arguments and find them to be without merit.
Concur — Sullivan, J.P., Williams, Mazzarelli, Andrias and Colabella, JJ.