People v. Griffin

Dec 21, 1990
Versions:168 A.D.2d 972
565 N.Y.S.2d 638
1990 N.Y. App. Div. LEXIS 16533

Order unanimously affirmed. Memorandum: Supreme Court properly denied defendant’s motion, pursuant to CPL 440.20 (1), to vacate his sentence as a persistent felony offender. Defendant was convicted in 1960 in Federal District Court of unlawful transportation of a stolen vehicle in interstate commerce (18 USC § 2312) and conspiracy to transport said vehicle (18 USC § 371) and was sentenced to one year and one day on each conviction. Since defendant received a sentence in excess of one year on each of those convictions they were properly considered for persistent felony offender adjudication (see, Penal Law § 70.10 [1] [b] [i]). Defendant also was convicted in 1968 in Suffolk County Court of criminal sale and possession of a dangerous drug, each in the second degree, and was sentenced to concurrent indeterminate terms of 5 to 15 years and 2 Vi to 7 years, respectively. Thus, defendant was properly adjudicated a persistent felony offender in 1979 (see, Penal Law § 70.10 [1] [a]). Defendant’s challenge to the constitutionality of the persistent felony offender statute (Penal Law § 70.10) lacks merit (see, People v Parker, 41 NY2d 21, 25). In view of our holding, we need not address the additional issue whether the court properly considered defendant’s 1965 conviction for second degree grand larceny on which he was sentenced to 0 to 5 years in a State reformatory. (Appeal from order of Cayuga County Court, Contiguglia, J.—vacate sentence.) Present—Dillon, P. J., Callahan, Boomer, Green and Lawton, JJ.