Opinion
December 5, 1994
Appeal from the Supreme Court, Kings County (Feldman, J.).
Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the sentences imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing.
The defendant's claims are either unpreserved for review (CPL 470.05) or without merit in light of the overwhelming evidence of the defendant's guilt and the court's curative charge (see, People v Crimmins, 36 N.Y.2d 230, 241-242; People v DeFigueroa, 182 A.D.2d 772, 773; People v Perry, 172 A.D.2d 858; People v Valerio, 167 A.D.2d 439, 440; People v Jackson, 127 A.D.2d 696, 697). In view of the People's concession that the defendant was improperly sentenced as a persistent violent felony offender, we remit the matter to the Supreme Court for resentencing (see, People v Morse, 62 N.Y.2d 205, 226; People v Martinez, 207 A.D.2d 912; People v Melero, 182 A.D.2d 839). Bracken, J.P., Miller, Ritter and Goldstein, JJ., concur.