People v. Malone

Jun 19, 1984
Versions:102 A.D.2d 737
477 N.Y.S.2d 6
1984 N.Y. App. Div. LEXIS 18904

— Judgment, Supreme Court, Bronx County (McMahon, J.), rendered March 2,1982, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree and burglary in the third degree, and sentencing him, as a persistent violent felony offender, to two concurrent indeterminate terms of from 8 years to life imprisonment, unanimously modified, on the law, to reverse the sentence on the conviction of burglary in the third degree and to reduce the same to an indeterminate term of from 3V£ to 7 years, and, except as thus modified, affirmed. 11 As the People concede, defendant could not legally be sentenced as a violent felony offender on his conviction of burglary in the third degree since it is not classified as a violent felony offense. (Penal Law, § 70.02, subd 1, par [c].) Accordingly, in accordance with defendant’s request and the People’s consent, we reduce the sentence on that conviction to an indeterminate term of from 3 ¥2 to 7 years, the maximum allowable sentence on a class D felony conviction for a second felony offender (Penal Law, § 70.06, subd 3). f Defendant was properly adjudicated a persistent violent felony offender, notwithstanding that the predicate offenses were committed prior to September 1, 1978, the effective date of the persistent violent felony offender statute (Penal Law, § 70.08); nor is the statute constitutionally infirm as an ex post facto law because it retroactively classifies pre1978 offenses as “violent felonies”, thereby enhancing the punishment for defendant’s present conviction of a violent felony offense. (People v Morse, 62 NY2d 205.) We note that no question of sequentiality is involved since the predicate felony convictions occurred three and one-half years apart. Finally, we do not find the 8 years to life sentence imposed on the conviction of gun possession to be excessive in the circumstances. Concur — Sullivan, J. P., Silverman, Bloom, Fein and Alexander, JJ.