Opinion
No. 173.
February 8, 2007.
Judgment, Supreme Court, Bronx County (Troy K. Webber, J), rendered October 2, 2002, convicting defendant, after a jury trial, of robbery in the first degree (two counts), robbery in the second degree (two counts) and criminal possession of a weapon in the second and third degrees, and sentencing him, as a persistent violent felony offender, to an aggregate term of 39 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of directing that all the above sentences be served concurrently, resulting in a new aggregate term of 23 years to life, and otherwise affirmed.
Richard M. Greenberg, Office of the Appellate Defender, New York (Sara Gurwitch of counsel), and Debevoise Plimpton LLP, New York (Steven S. Goldschmidt of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Lawrence H. Cunningham of counsel), for respondent.
Before: Mazzarelli, J.P., Andrias, Marlow, Buckley and McGuire, JJ.
Because we find the sentence excessive to the extent indicated, defendant's claim that the consecutive sentence was improperly imposed is academic.
Defendant's constitutional challenge to his sentence as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit ( see People v Rosen, 96 NY2d 329, cert denied 534 US 899). Defendant's mandatory sentence was triggered solely by his prior convictions ( see Almendarez-Torres v United States, 523 US 224).