Opinion
April 29, 1985
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Judgment modified, on the law, by vacating the sentence imposed. As so modified, judgment affirmed and matter remitted to the Supreme Court, Kings County, for resentencing.
The underlying predicates for defendant's sentence as a persistent violent felony offender (Penal Law § 70.08) were his conviction in 1976 of two felonies, the underlying offenses to both convictions having been committed before sentence under either one. Because these two convictions may only count as one predicate felony for the purpose of Penal Law § 70.08 ( People v Morse, 62 N.Y.2d 205), the within sentence must be vacated and the matter remitted for resentencing, at which time the People may file either a second violent felony offender statement or a persistent violent felony offender statement depending on what other crimes defendant may have been convicted of (Penal Law § 70.04; § 70.10 [1]).
We have considered defendant's other contentions and find them to be without merit. Mollen, P.J., Mangano, Gibbons and Bracken, JJ., concur.