PEOPLE v. CARR (1997)

Judgment, Supreme Court, New York County (Alvin Schlesinger, J.), rendered October 19, 1993, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 6 years to life, unanimously affirmed.

Defendant contends that the court erred in sentencing him as a persistent violent felony offender since he was not sentenced as a second violent felony offender for the second underlying violent felony conviction that formed the basis of the adjudication (Penal Law §§ 70.04, 70.08).   However, since defendant stood convicted of a violent felony, had been previously convicted of two violent felony convictions in that he had committed the second violent felony offense after he had been sentenced for his first one, and had committed his third violent felony offense after he had been sentenced for the first two, he was properly sentenced as a persistent violent felony offender.   While, as a result of his use of aliases he escaped being sentenced as a second violent felony offender for his second violent felony conviction in 1989, neither People v. Morse (62 N.Y.2d 205, 476 N.Y.S.2d 505, 465 N.E.2d 12) nor Penal Law § 70.08 require that a defendant be adjudicated a second violent felony offender in order to be sentenced as a persistent violent felony offender for his third violent felony conviction.  Morse addresses the “sequentiality” of the sentences (62 N.Y.2d at 219, 476 N.Y.S.2d 505, 465 N.E.2d 12), rather than the nature or severity of the sentences.

Contrary to defendant's contention, the record reveals that as a condition of his plea, he knowingly, intelligently and voluntarily waived appellate review of the suppression ruling (People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Burney, 235 A.D.2d 264, 652 N.Y.S.2d 521, lv. denied 89 N.Y.2d 1010, 658 N.Y.S.2d 248, 680 N.E.2d 622;  People v. Johnson, 158 A.D.2d 620, 551 N.Y.S.2d 590), which was correct in any event.

We have considered defendant's other arguments and find them to be without merit.

MEMORANDUM DECISION.