Opinion
May 15, 1969
Appeal from the Monroe County Court.
Present — Del Vecchio, J.P., Marsh, Gabrielli, Bastow and Henry, JJ.
Judgment insofar as it imposes sentence upon defendant unanimously reversed, sentence vacated, and matter remitted to Monroe County Court for proceedings on resentence in accordance with the following memorandum: The defendant was convicted of a violation of section 160.10 Penal of the Penal Law, robbery second degree, and was sentenced September 25, 1968, as a persistent felony offender, to an indeterminate term of 15 years to life. Sentence was imposed following a hearing required by section 470-a of the Code of Criminal Procedure, wherein findings were made and it was determined that defendant was a persistent felony offender as defined by section 70.10 Penal of the Penal Law. The findings are clearly insufficient to warrant such a determination and are not supported by the record. Of equal significance, we take note that no reasons for the court's opinion were set forth in the record as mandated by section 70.10 Penal of the Penal Law; nor does the present record reveal that "the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision" is required as set forth in that section. In essence, this life sentence was imposed upon proof only of three felony convictions, a permitted situation which prevailed under former sections 1940, 1941, and 1942 of the Penal Law, but which was designed to be remedied by the enactment of section 70.10 of the new Penal Law. Upon resentence, if the factual background is no stronger than presented upon the record before us and does not qualify for extended incarceration treatment, defendant should be sentenced pursuant to section 55.05 (subd. 1, par. [c]) of the Penal Law. (See Commentary by Peter Preiser, McKinney's Cons. Laws of N.Y., Book 39, Penal Law, § 70.10, p. 126.)