Opinion
February 3, 1986
Appeal from the Supreme Court, Kings County (Broomer, J.).
Judgment modified, on the law, by vacating the sentence and remitting the matter to the Supreme Court, Kings County, for the resentencing of defendant as a second violent felony offender pursuant to Penal Law § 70.04. As so modified, judgment affirmed.
Defendant asserts three instances of Trowbridge error (see, People v. Trowbridge, 305 N.Y. 471), two of which were not objected to at trial and therefore any error of law with respect thereto has not been preserved for our review (see, CPL 470.05; People v. Love, 57 N.Y.2d 1023). In view of the strength of the identification testimony, the alleged errors must be deemed harmless since there was no substantial issue on the point (see, People v. Mobley, 56 N.Y.2d 584; People v. Caserta, 19 N.Y.2d 18). Defendant's contention that the prosecutor's summation was so improper as to require a new trial is likewise unpreserved for our review (see, People v. Nuccie, 57 N.Y.2d 818). In any case, we note that there is no merit to defendant's argument. Taken in context and viewed in the totality of the trial (see, People v. Galloway, 54 N.Y.2d 396; People v. Gilmore, 106 A.D.2d 399), it cannot be said that the prosecutor's comments in summation exceeded the bounds of legitimate advocacy (see, People v. Shanis, 36 N.Y.2d 697).
Similarly unpreserved and unavailing is defendant's claim concerning the inadequacy of the trial court's supplemental charge to the jury (see, People v. Rios, 100 A.D.2d 521), as the court meaningfully responded to the jury's request for further instruction (see, CPL 310.30; People v. Malloy, 55 N.Y.2d 296, cert denied 459 U.S. 847; People v. Arcarola, 96 A.D.2d 1081).
The People concede that defendant was erroneously sentenced as a persistent violent felony offender pursuant to Penal Law § 70.08. In People v. Morse ( 62 N.Y.2d 205, appeal dismissed sub nom. Vega v. New York, 469 U.S. 1186), the Court of Appeals held that in order for a defendant to be sentenced as a persistent violent felony offender, the sentence for each of the predicate violent felony offenses must have been imposed prior to the commission of the next predicate offense (see, Penal Law § 70.08; § 70.04 [1] [b] [ii]). This sequentiality requirement was not fulfilled at bar, as defendant was not sentenced for the first felony until after he had committed the second felony for which he was convicted. Therefore, these two convictions must be considered one predicate violent felony offense pursuant to People v. Morse (supra), and the matter must be remitted to the Supreme Court, Kings County, for the resentencing of defendant as a second violent felony offender pursuant to Penal Law § 70.04 (see, People v. Jackson, 108 A.D.2d 757; People v. Taylor, 103 A.D.2d 853).
We have examined defendant's remaining contentions and find them to be without merit. Gibbons, J.P., Weinstein, Eiber and Kooper, JJ., concur.