Opinion
January 19, 1981
Appeal by defendant from a judgment of the County Court, Dutchess County, rendered September 9, 1977, convicting him of escape in the first degree, upon a jury verdict, and sentencing him as a persistent felony offender, to an indeterminate prison term of from 15 years to life. Judgment modified, as a matter of discretion in the interest of justice, by vacating the persistent felony offender adjudication, adjudicating defendant a second felony offender and sentencing defendant as such to an indeterminate prison term of from 3 1/2 to 7 years, to run consecutively to the sentence he was serving at the time he committed the crime of escape in the first degree. As so modified, judgment affirmed. It was an improvident exercise of discretion to sentence defendant as a persistent felony offender (see CPL 400.20, subd 1, par [b]). Therefore, the sentence is reduced accordingly. Damiani, J.P., O'Connor, Weinstein and Thompson, JJ., concur.