62 N.Y.2d 205 | NY | 1984
Lead Opinion
Both the second violent offender law and the persistent violent offender law require imposition of enhanced punishment upon conviction as a second or persistent violent felony offender, even though at the time of the prior conviction on which enhanced punishment is based the prior crime was not classified as a violent felony offense. So to construe the statutes involves no violation of the constitutional proscription upon ex post facto laws. Nor, under those statutes, where the predicate offense is only so classified because it occurs after a plea of guilty to a lesser included offense, is there any statutory infirmity in the failure to recite in the information that the prior conviction was obtained upon a plea of guilty or any constitutional defect because the same offense would not be classified as a violent felony if conviction had been obtained after trial. The Legislature did not intend the persistent violent felony offender law to apply, however, unless each of the two or more predicate violent felony convictions other than the first was for a felony which occurred after sentence had been imposed for the conviction which preceded it. In People v Morse and People v Frank, the orders of the Appellate Division should, therefore, be modified by substituting for the persistent violent felony offender adjudication a second violent felony offender adjudication and remitting for resentence and, except as so modified, should be affirmed. In each of the other three cases, the order of the Appellate Division should be affirmed.
I
These five appeals all concern the provisions for mandatory enhanced prison sentences of violent felony offenders established by article 70 of the Penal Law.
James Morse, Thomas Frank and Saul Vega were each adjudicated a persistent violent felony offender; Curtis Covington and Jack Johnson were sentenced as second violent felony offenders. Morse’s two prior convictions were both for robbery in the first degree and resulted from his pleas of guilty on one day
Vega’s, Covington’s and Johnson’s predicate convictions were all for attempted criminal possession of a weapon in the third degree.
The legal issues thus presented for our determination are: (1) whether the Legislature intended that a crime not classified as a violent felony offense when committed should constitute a predicate violent offense and, if so, whether enhancement of the punishment for the present violent crime on the basis of such a predicate crime violates the constitutional proscription against ex post facto laws; (2) whether the Legislature intended that the two or more predicate violent felony offenses required under the persistent violent felony offender law as the predicate for enhanced punishment under that statute be determined individually (i.e., by the separate crimes committed without regard to the fact that convictions may have been jointly obtained), or sequentially (i.e., so that the second offense, to be counted as a predicate, must be committed after sentence was imposed on the first); (3) whether there is any due process violation in the fact that under section 70.02 (subd 1, par [d]) attempted criminal possession of a weapon is a violent offense only when conviction results from a guilty plea; and (4) whether a predicate felony information which does not specify that a prior conviction of attempted criminal possession of a weapon in the third degree was obtained on a plea of guilty to a lesser included offense is
That the Legislature intended the enhanced punishment provisions of sections 70.04 and 70.08 of the Penal Law to apply when the prior crime was committed between September 1, 1967 (the effective date of the present Penal Law) and September 1, 1978 (the effective date of the violent offender law [L 1978, ch 481]) is evidenced by the provisions of section 70.04 (subd 1, par [b]) of the Penal In six separately numbered clauses that paragraph establishes the criteria by which to determine whether a prior conviction is a predicate violent felony conviction. Two of those criteria are of significance on the present question. Clause (i) enumerates four categories of convictions which may qualify as predicate violent felony offenses: class A felonies other than drug offenses, violent felony offenses as defined in subdivision 1 of section 70.02, offenses defined by the Penal Law in effect prior to September 1,1967 which contain all the essential elements of such a felony, and convictions in other jurisdictions of an offense including all the essential elements of such a felony for which a term of imprisonment in excess of one year or a sentence of death was authorized and is authorized in this State. Clauses (iv) and (v) exclude felonies sentence was imposed more than 10 years prior to the present offense, exclusive of periods of incarceration.
The Legislature has directed that the Penal Law “be construed according to the fair import of [its] terms to promote justice and effect the objects of the law” (Penal Law, § 5.00) and has listed among its general purposes: “To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the interests of public protection” (Penal Law, § 1.05, subd 6) and “To give fair
Construing the violent felony offender sections in accordance with those provisions, we find the intent of the Legislature unmistakable, for it has in clause (i) provided for retroactive application of the sections to class A felonies; to offenses committed prior to September 1,1967; and to offenses committed in other jurisdictions. It is, therefore, inconceivable that the Legislature intended to exclude from the predicate crime category crimes committed in New York between September 1, 1967 and September 1, 1978, but not the identical crimes committed prior to September 1, 1967 or committed in another State. That retroactivity was intended is also strongly suggested by clauses (iv) and (v), made effective as of September 1,1978, and which require enhanced punishment for predicate crimes that may have occurred 10 years (or possibly longer) before the present conviction.
That the predicate crime was not designated a “violent felony offense” when committed does not require a contrary conclusion so long as the elements of the crime when committed were the same as those of an offense now defined as a violent felony offense by subdivision 1 of section 70.02 of the Penal Law, for in such a case, the offender has been given fair warning of the nature of the conduct proscribed in advance of his or her commission of the present offense and at the time of its commission has fair warning of the sentence authorized as a result of the prior offense upon conviction. Thus, the legislative purpose declared in subdivision 2 of section 1.05 of the Penal Law is not infringed.
On similar reasoning, there is no violation of the restriction against ex post facto laws contained in article I (§ 10, cl 1) of the United States Constitution. As the Supreme Court has recognized in Weaver v Graham (450 US 24, 30): “Critical to relief under the Ex Post Facto Clause is * * * the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” But a sentence as a multiple offender “is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a
Thus, on neither statutory nor constitutional grounds is an offense committed between September 1, 1967 and September 1, 1978 excluded from classification as a predicate violent felony notwithstanding that it was not so classified when committed.
The Morse and Frank cases present the further question whether sentence can be imposed under section 70.08 of the Penal Law as a persistent violent felony offender when the predicate violent felony convictions resulted from guilty pleas entered on the same day to two separate violent felony charges as to which concurrent sentences were imposed on the same day. The problem is complicated by the fact that subdivision 1 of section 70.08,
For the reasons set forth below, we conclude that the history of New York’s multiple offender laws establishes the policy that enhanced punishment not be imposed unless the chastening effect of sentence on the prior conviction have preceded commission of the latest crime, and that to construe section 70.08 as the People urge would be contrary not only to that policy but also to accepted rules of statutory construction and would result in ambiguities in the persistent violent felony offender statues that cannot reasonably be said to have been intended.
A
New York, which was the first State in the country to adopt a recidivist statute, enacted such legislation in 1796 (L 1796, ch 30). It enhanced sentence only for the second conviction, however (id.; Penal Code of 1881, § 688, L 1881, ch 676). Provision for further enhancement of punishment was not made until 1907, when, by the addition of section 688-a to the Penal Code (L 1907, ch 645), increased punishment for fourth offenders was added. The latter provision, which without change in substance became section 1942 of the Penal Law of 1909, contained no explicit language concerning the sequence of the first three convictions, and sequentiality of the convictions does not appear to have been litigated prior to its amendment in 1926.
Fourth felony convictions became more likely with the amendment of section 1942 in 1926 to delete the requirement that prior convictions be alleged in the indictment and proved at trial and with the addition, in the same year, of a provision requiring imposition of a fourth felony sentence upon a prisoner already sentenced if previously undiscovered convictions thereafter became known (Penal
Multiple crime indictments and the consolidation of indictments for trial was permitted for the first time when section 279 of the Code of Criminal Procedure was enacted by chapter 328 of the Laws of 1936. In conjunction with the adoption of that section, section 1941 of the Penal Law, pertaining to second felony offenders, and section 1942, pertaining to fourth felony offenders, were each amended by addition of a sentence reading: “For purposes of this section, conviction of two or more crimes charged in separate counts of one indictment or information, or in two or more indictments or informations consolidated for trial, shall be deemed to be only one conviction.” As thereafter construed, section 1942 mandated a life sentence for a fourth offender three of whose four prior convictions resulted from guilty pleas, taken simultaneously, to consecutively numbered but separate forgery indictments (People v Taylor, 13 NY2d 675, affg without opn 16 AD2d 944) but did not require such a sentence when two of the prior indictments were tried before the same Judge and jury and resulted in simultaneous guilty verdicts, notwithstanding that the charges arose from different transactions and that the sentences on them were directed to be served consecutively (People ex rel. Janosko v Fay, 6 NY2d 82).
It is not surprising, therefore, that the Temporary Commission on Revision of the Penal Law and Criminal Code (Commission) found the sentencing structure of the Penal Law “permeated * * * with inconsistencies, ambiguities,
When in 1973 mandatory enhanced sentences for second felony offenders were reinstated (L 1973, ch 277, § 9, enacting Penal Law, § 70.06), the Legislature made clear, by the
B
It is against this background that the violent felony provisions enacted by chapter 481 of the Laws of 1978 must be viewed. That statute enacted section 70.02 enumerating the offenses classified as violent and the sentences authorized for each, section 70.04 defining a second violent felony offender and detailing the sentences required, and section 70.08 defining a persistent violent felony offender and stating the sentences required to be imposed. It also amended section 70.06 to exclude from the definition of second felony offender “a second violent felony offender as defined in section 70.04” and section 70.10 to exclude from the definition of persistent felony offender “a persistent violent felony offender as defined in section 70.08.”
Section 70.08 differs from the other three recidivist statutes in that, instead of listing its own criteria limiting and defining the meaning of “two or more predicate violent felony convictions,” it cross-references in both paragraphs (a) and (b) of its subdivision 1 (quoted in n 7 above) to section 70.04 (subd 1, par [b]). Nothing in the legislative history explains why the cross reference to section 70.04, which deals with the relation between the present conviction and a prior conviction, was thought sufficient even
Section 70.08 differs from section 70.10 in that it does not include by cross reference or adoption of the same language, a provision similar to section 70.10 (subd 1, par [c]) specifically requiring that two or more convictions of crimes committed prior to imprisonment under sentence for any of them be treated as one conviction. Absent the cross reference to section 70.04, with its incorporation of sequentiality, the omission of a provision paralleling section 70.10 (subd 1, par [c]) might be read as indicating a legislative desire to treat persistent violent felony offenders more harshly in terms of the sequentiality of their prior convictions. But the contrary is suggested not only by the cross reference to section 70.04, but also by the rejection in 70.04 (and thus by cross reference in 70.08) of section 70.10’s requirement of an actual prison sentence greater than one year, and its inclusion of probation, suspended sentence and the like as a prior sentence. By recognizing that failure to reform after a sentence of the
The conclusion that sequentiality remains a factor in the persistent violent felony offender provisions of section 70.08 is consistent with the rule for construction of statutes in pari materia. Under that rule “where the legislation dealing with a particular subject consists of a system of related general provisions indicative of a settled policy, new enactments of a fragmentary nature on that subject are to be taken as intended to fit into the existing system and to be carried into effect conformably to it, excepting as a different purpose is plainly shown” (United States v Jefferson Elec. Co., 291 US 386, 396; accord Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach, 39 NY2d 1029, affg on opn at Special Term 79 Misc 2d 438, 444; City of Rochester v Union Free School Dist. No. 4, 280 NY 531, affg 255 App Div 96, 102; Matter of New York, Westchester & Boston Ry. Co. [Huntington], 193 NY 72, 89). Here a legislative policy of sequentiality is established for second felony offenders (§ 70.06, subd 1, par [b], cl [ii]), persistent felony offenders (§ 70.10, subd 1, par [b], cl [ii]), second violent felony offenders (§ 70.04, subd 1, par [b], cl [ii]) and by cross reference to the latter provision for persistent violent felony offenders as well (§ 70.08, subd 1, pars [a], [b]), and nothing in the history of the latter provision, other than the failure also to refer to section 70.10 (subd 1, par [c]), suggests that the Legislature intended that sequentiality should apply between the present and each of the prior convictions but not between the prior convictions themselves.
To conclude that as to persistent violent felony offenders the Legislature purposefully but silently accepted sequen-tiality between present and predicate convictions but rejected sequentiality as between the predicate convictions themselves is to ignore the importance attached to the principle by the Commission and to return, as to predicate violent felony convictions, to the pre-1965 ambiguity and arbitrariness which the Commission decried. The fourth
The remaining issues can be dealt with more summarily. Defendant Vega’s argument that the persistent violent felony offender information filed against him was jurisdictionally defective because it did not state that his prior conviction for attempted criminal possession of a weapon in the third degree was on a guilty plea is answered by People v Harris (61 NY2d 9, 20). There we held the failure to file a predicate statement was harmless, the statutory purpose of apprising the court of the facts and providing defendant with reasonable notice and an opportunity to be heard having been satisfied. There can be no question that such is the present case, for the minutes of defendant’s present sentencing include the Judge’s statement that “there has been no jury connected with any of these prior criminal acts.” There was, in any event, no jurisdictional defect. The information stated the prior conviction to have been for attempted criminal possession of a weapon in the third degree and made specific reference to subdivision 1 of section 70.02 of the Penal Law. Paragraph (d) of that subdivision by its reference to “a lesser included offense * * * as defined in section 220.20 of the criminal procedure law” makes clear that the offense could be a
No more successful is Vega’s contention that his enhanced punishment results partly from the previous charge rather than what he was convicted for. That is true only in the sense that had he been charged with attempted criminal possession of a weapon in the third degree rather than with the offense of possession itself, his guilty plea would not constitute a violent felony conviction within the meaning of section 70.02 (subd 1, par [d]) of the Penal Law. He was, however, aware when he entered his guilty pleas to the prior offenses that the offense to which he pleaded existed essentially only for purposes of plea negotiation (see Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 220.20, p 277). Unlike the situation in People v Drummond (40 NY2d 990), on which defendant relies, the punishment now imposed upon him is not wholly dependent on an unproven charge. Here reliance on the prior indictment is minimal and the enhanced punishment imposed constitutes no violation of due process, for, to paraphrase our recent holding in People v Felix (58 NY2d 156, 163): “[adjudication, though with something less than trial formality, thus [had] an important role [in the prior conviction]; sentence [for the present offense] does not depend solely on [the prior] accusation.”
Accordingly, in People v Morse and People v Frank the orders of the Appellate Division should be modified by vacating the persistent violent felony adjudication, and remitting for sentence as a second violent felony offender and, except as so modified, should be affirmed. In People v Covington, People v Vega and People v Johnson, the orders of the Appellate Division should be affirmed.
. Article 70 differentiates as to sentence between felonies and violent felonies and as to each category requires imposition of enhanced punishment for a second offense and of even heavier punishment for a persistent offender. Section 70.00 of the Penal Law establishes sentences of imprisonment for felony; section 70.06 defines a second felony offender and requires imposition of maximum and minimum sentences for such an offender; section 70.10 defines a persistent felony offender and the authorized sentences for such an offender. Section 70.02 of the Penal Law categorizes, by cross reference to other sections of the Penal Law, various crimes as violent felony offenses and establishes the sentences of imprisonment authorized for violent felony offenders; section 70.04
. Morse and Prank raised their present objections prior to sentence. Although Covington, Vega and Johnson did not, they have not controverted the allegations of the predicate or persistent felony information, which would require timely objection (CPL 400.15, subd 3; 400.16, subd 2), nor are they arguing that the court omitted a required procedure or failed to exercise its discretion, prior to imposing a permissible sentence (cf. People v McGowen, 42 NY2d 905; People v Drummond, 40 NY2d 990, cert den sub nom. New York v Luis J., 431 US 908). Rather, conceding the facts, they attack the power of the court to sentence as it did. Such a challenge may be raised for the first time on appeal (People v Fuller, 57 NY2d 152, 156).
. While the fact is that Morse, and also Prank, pleaded guilty to two prior crimes on the same day, the dissent is in error in suggesting (p 227) that the fact that “the sentences for his two prior convictions were imposed on the same date” is the basis for the result reached. The same result would follow from sentences on different days where sentence for the first was not imposed prior to commission of the second.
. The definition of “violent felony offense” in section 70.02 (subd 1, par [d]) of the
. Morse’s brief also raises identification issues, which we do not consider because
. Section 70.04 (subd 1, par [ab of the Penal Law defines “second violent felony offender” as a person convicted of a violent felony as defined in section 70.02 of the Penal Law “after having previously been subjected to a predicate violent felony conviction as defined in paragraph (b).” Section 70.08 (subd 1, par [b]) of the Penal Law directs that as to a persistent violent felony offender “[fjor the purpose of determining whether a person has two or more predicate violent felony convictions, the criteria set forth in paragraph (b) of subdivision one of section 70.04 shall apply.”
. That subdivision reads:
“1. Definition of persistent violent felony offender.
“(a) A persistent violent felony offender is a person who stands convicted of a violent felony offense as defined in subdivision one of section 70.02 after having previously been subjected to two or more predicate violent felony convictions as defined in paragraph (b) of subdivision one of section 70.04.
“(b) For the purpose of determining whether a person has two or more predicate violent felony convictions, the criteria set forth in paragraph (b) of subdivision one of section 70.04 shall apply.”
. Among the reasons suggested for the absence of litigation as to sequentiality are the requirement that the three prior convictions be alleged in the indictment and proven at trial, the hesitancy of juries to convict in view of the harsh penalty, the absence of a national fingerprint identification system, and the ability of the defendant charged as a fourth felony offender to plead guilty as a first offender, all of which combined to make such convictions rare (People v Spellman, 136 Misc 25, 28; see McQuillan, New York’s Persistent Felony Offender Laws: The Importance of the Sequence of the Prior Convictions [unpublished paper, submitted with defendant Frank’s brief], pp 14-15, 18).
. It is, thus, incorrect to say, as does the dissent (p 232), that Janosko and Taylor evidence a policy that crimes which share the same time, place and nature be considered as one predicate conviction under the statute. On their facts those cases involved separate transactions; they turn simply on whether the resulting indictments were consolidated for trial.
. The latter language on which the dissent places such great emphasis was, thus, no more than a conforming amendment intended to obviate any ambiguity that might otherwise exist as to the nonviolent offenses defined in sections 70.06 and 70.10. To read it as rejecting sequentiality as to the persistent violent felony offender defined in section 70.08 is to ignore the parallel amendment of section 70.06, which includes a sequentiality provision, and the cross references in section 70.08 (subd 1, pars [a], [b]) to section 70.04 (subd 1, par [b]), which also includes an identically worded sequentiality provision.
. In light of the cross reference and the inclusion in section 70.04 (subd 1, par [b], cl [ii]) of the requirement that the “prior conviction must have been imposed before commission of the present felony”, it is difficult to understand the statement in the dissent (pp 231-232) that “a specific requirement for multiple separate prior sentences is * * * not mentioned in the persistent-uiole/ii statute” (emphasis in original).
Dissenting Opinion
(dissenting in People v Morse and People v Frank). Today the majority holds that the defendant in People v Morse, who stands convicted of robbery in the first degree and burglary in the first degree and has two prior convictions for previous separate crimes of robbery in the first degree to which he pleaded guilty in satisfaction of 17
In my view, because the defendants in Morse and Frank had multiple prior violent felony convictions, they were correctly adjudicated persistent violent felony offenders under section 70.08 of the Penal Law (hereafter the “persistent-violent statute”), and their sentences ought to be affirmed. I strongly disagree with the majority’s position that a defendant may not be sentenced as a persistent offender, regardless of the number of prior violent felony convictions, unless, in addition to that, the defendant has already received at least two separate sentences as a result of those convictions. The persistent-violent statute is utterly devoid of such a requirement. Nevertheless, the majority has lifted the requirement from the penal section applicable to persistent (nonviolent) felony offenders (Penal Law, §,70.10, subd 1, par [c]) (hereafter the “persistent-nonviolent statute”), whose provisions are explicitly inapplicable to persistent violent offenders (§ 70.10, subd 1, par [a]), and appended it to the persistent-uioZeni statute (§ 70.08), which otherwise clearly contains no such provision. In effect, the majority finds in the persistent-uioZerci statute a requirement which, I believe, the Legislature chose to exclude.
Furthermore, this case does not involve a statute which, as unmodified, is either constitutionally infirm, lacking in
The statutory provisions pertaining to persistent violent felony offenders are in critical respects different from those applicable to persistent (nonviolent) felony offenders. The persistent-nonviolent statute specifically requires that a defendant have received at least two separate prior sentences before being subject to enhanced punishment for a subsequent felony conviction. It does so by explicitly providing that: “For the purpose of determining whether a person has two or more previous felony convictions, two or more convictions of crimes that were committed prior to the time the defendant was imprisoned under sentence for any of such convictions shall be deemed to be only one conviction.” (Penal Law, § 70.10, subd 1, par [c].) Hence, under the provisions for nonviolent offenders, all previous convictions committed prior to the first sentence imposed are considered to be only one predicate conviction for the purpose of determining whether a repeat offender should be sentenced as a persistent or only a second offender. Where a defendant has received only one previous sentence, regardless of the actual number of prior convictions, that defendant may only be sentenced as a second offender. Only where a defendant has received at least two separate prior sentences may that defendant be sentenced as a persistent offender.
Contrawise, however, there is no such provision in the persistent-uzoZeni statute. Though its format is similar to that of the persistent-nonviolent statute, where the latter explicitly contains the requirement for multiple separate prior sentences, the former is utterly silent. Contrary to
The persistent-nonviolent statute requires that the defendant have actually served previous sentences of imprisonment. It provides, in pertinent part, that:
“A previous felony conviction within the meaning of paragraph (a) of this subdivision is a conviction of a felony in this state, or of a crime in any other jurisdiction, provided:
“(i) that a sentence to a term of imprisonment in excess of one year, or a sentence to death, was imposed therefor; and
“(fi) that the defendant was imprisoned under sentence for such conviction prior to the commission of the present felony; and
“(in) that defendant was not pardoned on the ground of innocence.” (Penal Law, § 70.10, subd 1, par [b].)
Likewise, the persistent-aioZe?ii statute differs from the nonviolent one in the sentences authorized. Again, the former is harsher. The statute mandates the imposition of an indeterminate life sentence. (Penal Law, § 70.08, subds 2, 3.) By contrast, the persistent-nonviolent one permits a greater measure of leniency, authorizing the sentencing court to exercise discretion in imposing a range of permissible sentences. (Penal Law, § 70.10, subd 2.)
Moreover, while the persistent-nonaioZeni statute contains its own definition of qualifying predicate convictions, listing certain specific requirements that must be satisfied, including multiple separate prior sentences of imprisonment (Penal Law, § 70.10, subd 1, pars [b], [c]), it is significant that the persistent-yioZerci statute does not rely upon or even refer to that definition. Rather, while it does not contain its own separate definition, it explicitly incorporates the provisions of the second violent felony offender statute (hereafter the “second-violent statute”) which, in turn, requires only that the predicate convictions be prior to the commission of the present felony and that some previous sentence have been imposed. (Penal Law, § 70.04, subd 1, par [b].) There is plainly no requirement, either expressed or to be inferred, that multiple separate sentences must precede adjudication of a defendant as a persistent violent offender.
In my view, the majority’s attempt to analogize the violent with the nonviolent recidivist statutory scheme is mistaken, and their interpretation of the statutory language is forced. Indeed, the majority does not really interpret the persistent-violent statute; they amend it. The statutory language clearly does not say what the majority holds that it does. There is simply no such requirement for multiple separate prior sentences as invoked by the majority. To be sure, it is a basic rule of statutory construction that where the provisions of one statute differ from that of another, it is reasonable to assume that a distinction was intended. (Matter of Albano v Kirby, 36 NY2d 526, 530.) Here, where a specific requirement for multiple separate
Of course, it has been a long-standing legislative and judicial policy in this State to consider multiple prior convictions for crimes which share the same time, place and nature as one predicate for the purposes of recidivist statutes. (See, e.g., People ex rel. Janosko v Fay, 6 NY2d 82, 87-88; cf. People v Taylor, 13 NY2d 675.) But in neither People v Morse nor People v Frank, before us today, is there any such identity or proximity of the prior convictions justifying their treatment as one. Though in each case the defendant had been convicted of the subject prior violent felonies on a single day, in fact, each felony was distinct, having been committed on different days and in different places. Consequently, in neither case is there any requirement for deeming the multiple prior convictions to be one.
Accordingly, I would affirm the adjudications of persistent violent felony offender status and the sentences in both People v Morse and People v Frank.
In People v Covington, Vega and Johnson: Order affirmed.
In People v Morse: Order modified and case remitted to Supreme Court, Bronx County, for sentence in accordance with the opinion herein and, as so modified, affirmed.
In People v Frank: Order modified and case remitted to Supreme Court, New York County, for sentence in accordance with the opinion herein and, as so modified, affirmed.
. Notwithstanding the majority’s protestations to the contrary (majority opn, p 214, n 3), under their rationale the critical obstacle to sentencing defendants in Morse and Frank as persistent offenders is the fact that in each case the prior sentences were imposed on the same day. In each of the subject cases, the sentences were imposed ‘before commission of the present felony” as the law requires. (Penal Law, § 70.08, subd 1, par [b]; § 70.06, subd 1, par [b], cl [ii].) They were not imposed, however, on different days between each of the separate prior felonies as, today, the majority requires. Thus, it would seem that the majority decides these two cases as it does only because the sentences were imposed at the same time.
. Contrary to the majority’s assertion (majority opn, p 222, n 10), we clearly do not “read Tthis provision] as rejecting sequentiality” standing by itself. We do, however, cite it for the meaning of its plain language, which is that the provisions of the persistent-nonviolent statute cannot be read into the persistent-violent statute as the majority nevertheless attempts to do. (See majority opn, pp 221-222.)
. Despite the majority’s interpretive efforts in discovering a requirement for multiple separate prior sentences in the persistent-violent statute (majority opn, pp 223-224) and their criticism of the dissent for failing to find the same (p 223, n 11), it should be apparent even to the casual reader that such a requirement is simply not there. (Compare Penal Law, § 70.10, subd 1, pars [a], [b] and [c], with § 70.08, subd 1, pars [a] and [b], but no [e].)
