PEOPLE v. COLON

Defendant did not preserve his claim that his conviction was the product of governmental misconduct ( see People v Montgomery, 88 NY2d 1041), and we decline to review it in the interest of justice. Were we to review this claim, we would find it without merit ( see People v Isaacson, 44 NY2d 511).

Since defendant's convictions of second and third-degree weapon possession were based on the same possessions of identical weapons, we vacate the third-degree convictions in the interest of justice ( see People v Montgomery, 293 AD2d 369 [2002], lv denied 98 NY2d 712).

As the People concede, defendant was improperly adjudicated a persistent violent felony offender because the adjudication was based on predicate convictions that did not meet the sequentiality requirement of Penal Law § 70.08 ( see People v Morse, 62 NY2d 205). However, the People are not precluded from attempting to establish, on the basis of a different conviction or convictions, that defendant is nonetheless a persistent violent felony offender ( see People v Sailor, 65 NY2d 224, cert denied 474 US 982).