Opinion
December 29, 1997
Appeal from the County Court, Suffolk County (Dounias, J.).
Ordered that the sentence is reversed, on the law, the adjudication of the defendant as a persistent violent felony offender is vacated, and the matter is remitted to County Court, Suffolk County, for resentencing of the defendant in accordance herewith.
The defendant was sentenced as a persistent violent felony offender based upon two prior, violent felony convictions. However, the defendant committed the second of those violent felony offenses before he had been sentenced on the first. Therefore, he cannot be sentenced as a persistent violent felony offender based upon those two convictions alone ( People v. Morse, 62 N.Y.2d 205, 218-219). Accordingly, his adjudication as a persistent violent felony offender must be vacated and the matter remitted to the County Court, Suffolk County, for resentencing.
We note that the defendant may be determined to be a persistent violent felony offender based upon, inter alia, a 1983 conviction which was not included in the original persistent violent felony offender statement ( see, CPL 400.16). Therefore, the People may, if they be so advised, file a new persistent violent felony offender statement which includes that conviction ( see, People v. Sanchez, 131 A.D.2d 605, 606), affording the defendant an opportunity to challenge that conviction ( see, CPL 400.15).
Miller, J. P., Ritter, Sullivan, Santucci and McGinity, JJ., concur.