October 17, 1985
Appeal from the Supreme Court, New York County (Thomas B. Galligan, J.).
Penal Law § 70.08 (1) defines a persistent violent felony offender as an individual who has been convicted of a violent felony offense, after having previously been subjected to two or more predicate violent felony convictions as defined in Penal Law § 70.04 (1) (b). The District Attorney acknowledges that the defendant was not the subject of two predicate convictions within the meaning of Penal Law § 70.04 (1) (b) (ii). The two prior convictions which formed the basis for the defendant's adjudication as a persistent violent felony offender were improperly treated as separate offenses because, rather than having committed the second offense subsequent to sentencing for the preceding conviction, the defendant herein received sentences for each on the same day. (People v Morse, 62 N.Y.2d 205, 222-225; People v Santana, 107 A.D.2d 613.) Accordingly, we vacate the sentence and remand for resentencing of the defendant as a second violent felony offender.
Concur — Sandler, J.P., Ross, Fein and Rosenberger, JJ.