People v. Blount , 54 A.D.2d 718 ( 1976 )

Appeal (1) by defendant from (a) a judgment of the County Court, Nassau County, rendered June 21, 1974, convicting him of arson in the second degree, upon a jury verdict, and sentencing him to an indeterminate term of four and one-half to nine years and (b) a resentence of the Supreme Court, Nassau County, rendered May 19, 1976, which imposed an indeterminate term of three to nine years and (2) by the People from the resentence of May 19, 1976. Judgment of the County Court rendered June 21, 1974 affirmed. Resentence of the Supreme Court, rendered May, 1976, modified by vacating the sentence of three to nine years and reinstating the sentence of four and one-half to nine years imposed June 21, 1974. Defendant was convicted of arson in the second degree, after a jury trial, and was sentenced as a second felony offender. Thereafter, the sentence was vacated as unlawful on the grounds that the statute prescribing second felony offender treatment (Penal Law, § 70.06, prior to its amendment by L 1975, ch 784, § 1), was unconstitutional. This was error (see People v Darson, 48 AD2d 931; People v Mercogliano, 50 AD2d 907). As the failure to sentence defendant as a second felony offender was invalid as a matter of law, the appeal by the People has been properly taken (see CPL 450.30, subd 2; Penal Law, § 70.06). The other contentions of the defendant have been considered and found to be without merit. Margett, Acting P. J., Damiani, Rabin, Shapiro and Titone, JJ., concur.