Opinion
May 12, 1987
Appeal from the Supreme Court, New York County (Budd G. Goodman, J.).
Penal Law § 70.06 (1) (b) (ii) provides that for the purpose of determining whether a prior conviction can constitute a predicate felony, the sentence upon such prior conviction must have been imposed before commission of the present felony. Defendant was sentenced as a predicate felon based on his prior convictions for rape and sodomy for which he was sentenced on March 6, 1985. As the sentences on those convictions were not imposed until after defendant committed the instant crime, those convictions are not predicate felonies within the meaning of the statute. Neither may defendant's other felony conviction for robbery serve as a predicate felony, since the sentence on that conviction was also imposed after commission of the instant crime. Defendant was, therefore, as the People concede, improperly sentenced as a predicate felon.
As pointed out by both parties on appeal, there is no need to remand for resentencing. The sentencing court expressed its intent to impose the minimum sentence permitted for a class E felony for a predicate felon, 1 1/2 to 3 years. The sentence sought by both defendant and the People, the minimum sentence of 1 to 3 years permitted for a class E felony, is therefore consistent with the sentencing court's intent. Accordingly, we exercise our powers under CPL 470.20 to so modify defendant's sentence.
Concur — Kupferman, J.P., Sullivan, Carro, Milonas and Smith, JJ.