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The prior conviction was for unlawful possession of a weapon in the third degree

In the late evening on the 24th of October, the defendant along with another individual accosted and robbed a victim as she was walking along a street in Manhattan. The defendant displayed what looked like a handgun, but was just a toy pistol. The other individual had a knife.

The defendant and the other individual were arrested and by way of a four count indictment were charged with first degree robbery, two counts of second degree robbery, and first degree criminal use of a firearm.

The defendant was found guilty after a jury trial was held. He was sentenced to concurrent prison terms of three to nine years for each of the four convictions. The convictions and sentences were affirmed by the Appellate Court.

Case Discussion and Decision
The main issue in this case is whether the first degree robbery charge is appropriate to support the conviction for first degree criminal use of a firearm. The court finds that it is appropriate and is confirming the decision made by the Supreme Court and Appellate Court.

The defendant is appealing a sentence made in the Supreme Court in Kings County. The sentence convicted the defendant of sexual abuse in the first degree, upon his plea of guilty and the sentence is an indeterminate term of one and one half to three years imprisonment as a second felony offender.

Court Discussion
The defendant was improperly adjudicated a second felony offender because the elements of the offense that served as the predicate for this adjudication did not constitute a felony in New York. The prior conviction was for unlawful possession of a weapon in the third degree which violates the New Jersey code of criminal justice. The defendant was incarcerated for four years for that conviction.

Court Decision
It is determined that the defendant was incorrectly sentenced as a second felony offender. For this reason, the sentence is modified on the law by vacating the defendant’s adjudication as second felony offender and reducing his sentence to an indeterminate term of one to three years imprisonment. The rest of the sentence is affirmed.

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