Opinion
October 8, 1996.
Judgment, Supreme Court, New York County (Richard Andrias, J.), rendered November 18, 1992, convicting defendant, upon his plea of guilty, of robbery in the second and third degrees, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years on the robbery in the second degree convictions, to run consecutively to a term of 2 to 4 years on robbery in the third degree conviction, unanimously modified, on the facts, to vacate one of the concurrent 4½ to 9 year terms, and otherwise affirmed.
Before: Rosenberger, J. P., Ellerin, Williams and Mazzarelli, JJ.
The sentencing court's refusal to hold a hearing in connection with defendant's challenge to the constitutionality of his prior felony conviction was properly based on the denial of defendant's CPL 440.10 motion in the prior proceeding raising the precise issue of ineffective assistance of counsel he seeks to raise herein ( see, People v Abbott, 178 AD2d 281, 282, lv denied 79 NY2d 918; People v Di Giacomo, 96 AD2d 1127). As the People concede, the court erred in sentencing defendant on two counts of robbery in the second degree, and we modify the sentence accordingly.