| People v Colon |
| 2007 NY Slip Op 09314 [45 AD3d 457] |
| November 27, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Moises Colon, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Elizabeth Squires of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered September12, 2005, convicting defendant, after a jury trial, of attempted criminal possession of a controlledsubstance in the first degree, conspiracy in the second degree, criminal possession of a weapon inthe second and third degrees (three counts each), attempted grand larceny in the third degree, andcriminal impersonation in the first degree, and sentencing him, as a persistent violent felonyoffender, to an aggregate term of 20 years to life, unanimously modified, on the law, to the extentof vacating the persistent violent felony offender adjudication and the sentences on thesecond-degree weapon convictions and remanding the matter for further proceedings consistentherewith, and, as a matter of discretion in the interest of justice, to the extent of vacating thethird-degree weapon convictions and dismissing those counts of the indictment, and otherwiseaffirmed.
Defendant did not preserve his claim that his conviction was the product of governmentalmisconduct (see People v Montgomery, 88 NY2d 1041 [1996]), and we decline to reviewit in the interest of justice. Were we to review this claim, we would find it without merit (seePeople v Isaacson, 44 NY2d 511 [1978]).
Since defendant's convictions of second- and third-degree weapon possession were based onthe same possessions of identical weapons, we vacate the third-degree convictions in the interestof justice (see People v Montgomery, 293 AD2d 369 [2002], lv denied 98 NY2d712 [2002]).
As the People concede, defendant was improperly adjudicated a persistent violent felonyoffender because the adjudication was based on predicate convictions that did not meet thesequentiality requirement of Penal Law § 70.08 (see People v Morse, 62 NY2d 205[1984]). However, the People are not precluded from attempting to establish, on the basis of adifferent conviction or convictions, that defendant is nonetheless a persistent violent felonyoffender (see [*2]People v Sailor, 65 NY2d 224 [1985],cert denied 474 US 982 [1985]). Concur—Lippman, P.J., Friedman, Sullivan,Gonzalez and Catterson, JJ.