People v. Dozier

Sullivan, J. P., and Rubin, J.,

dissent in a memorandum by Rubin, J., as follows: The only meritorious issue presented by this appeal is whether a conviction which is more than 10 years old can be the basis for sentencing as a second violent felony offender (Penal Law § 70.04) where the sentence imposed upon a subsequent, unrelated conviction, which resulted in the exclusion of a period of incarceration from the calculation of the statutory 10-year period, was later vacated and the indictment dismissed.

Defendant was sentenced as a second violent felony offender predicated upon a December 28,…