Opinion
March 2, 1987
Appeal from the County Court, Westchester County (Braatz, J.).
Ordered that the judgment is modified, on the law, by vacating the sentence imposed, vacating the persistent violent felony offender adjudication, and substituting therefor an adjudication that the defendant is a second violent felony offender; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for resentencing.
As the prosecution concedes, under the Court of Appeals decision in People v. Morse ( 62 N.Y.2d 205, appeal dismissed sub nom. Vega v. New York, 469 U.S. 1186), the sentencing court erred in adjudicating the appellant to be a persistent violent felony offender. The defendant's prior violent felony convictions were rendered on October 3, 1977. On those prior felony convictions, the defendant received concurrent sentences. The Court of Appeals in People v. Morse (supra) held that Penal Law § 70.08 (1) (b) must be interpreted as requiring that the second predicate violent felony offense must have been committed after sentence was imposed on the first. Thus, the defendant's prior convictions do not constitute two or more predicate convictions since the proposed second predicate offense was not committed after sentence was imposed upon the first predicate offense (see, People v. Rodriguez, 116 A.D.2d 749). Accordingly, that adjudication is vacated, the defendant is adjudicated a second violent felony offender, and the matter is remitted for resentencing.
We have reviewed the defendant's other contentions and find them to be without merit. Mollen, P.J., Lawrence, Kunzeman and Sullivan, JJ., concur.