People v Anthony Jones

People v Jones 2005 NY Slip Op 02499 [16 AD3d 701] March 28, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 18, 2005

The People of the State of New York, Respondent,
v
Anthony Jones, Also Known as Anthony Lewis, Appellant.

—[*1]Appeal by the defendant from a judgment of the Supreme Court, Kings County (Barros, J.), rendered October 3, 2002, convicting him of robbery in the first degree (two counts), and petit larceny, upon his plea of guilty, and sentencing him as a second violent felony offender to concurrent determinate terms of imprisonment of 10 years on the convictions of robbery in the first degree and one year on the conviction of petit larceny.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.

As correctly conceded by the People, the defendant was improperly adjudicated and sentenced as a second violent felony offender. Based upon the information contained in the predicate felony statement, the defendant's 1986 conviction did not qualify as a predicate violent felony (see Penal Law § 70.04 [1] [b] [iv], [v]; CPL 400.15 [2]). Accordingly, the sentence must be vacated and the matter remitted to the Supreme Court, Kings County, for resentencing.

The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit, or need not be reached in light of this determination. Schmidt, J.P., Krausman, Rivera and Fisher, JJ., concur.