Opinion
2000-07013
Submitted October 8, 2002.
October 28, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Knipel, J.), rendered July 19, 2000, convicting him of robbery in the first degree, grand larceny in the fourth degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (John Gemmill of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Solomon Neubort, and Stephen McLeod of counsel), for respondent.
Before: DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, HOWARD MILLER, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed upon the conviction of grand larceny in the fourth degree; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
The Supreme Court providently exercised its discretion in allowing the People to inquire, in the event the defendant testified at trial, regarding his having five prior felony and two recent misdemeanor convictions, and his use of an alias (see People v. Hayes, 97 N.Y.2d 203; People v. Sandoval, 34 N.Y.2d 371).
The defendant's argument that the Supreme Court erred in giving a "no adverse inference" charge is unpreserved for appellate review (see CPL 470.05; People v. Robinson, 88 N.Y.2d 1001) and, in any event, is without merit (see CPL 300.10; People v. Vereen, 45 N.Y.2d 856; People v. Bailey, 222 A.D.2d 686).
As the People correctly concede, grand larceny in the fourth degree (see Penal Law § 155.30) is not an enumerated violent felony offense (see Penal Law § 70.02). Therefore, the defendant was erroneously sentenced on that count as a persistent violent felony offender (see CPL 400.16; Penal Law § 70.08).
RITTER, J.P., ALTMAN, H. MILLER and ADAMS, JJ., concur.