| People v Johnson |
| 2008 NY Slip Op 09843 [57 AD3d 323] |
| December 16, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Johnson, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Marc A. Sherman of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered June 7, 2007,convicting defendant, upon his plea of guilty, of manslaughter in the first degree and attemptedmurder in the second degree, and sentencing him, as a second violent felony offender, toconcurrent terms of 20 years, unanimously modified, on the law, to the extent of vacating theDNA databank fee, and reducing the amounts of the mandatory surcharge and crime victimassistance fees from $250 and $20 to $150 and $5, respectively, and otherwise affirmed.
Judgment, same court, Justice and date, convicting defendant, upon his plea of guilty, of rapein the first degree, and sentencing him, as a second violent felony offender, to a concurrent termof 15 years, unanimously modified, on the law, to the extent of vacating the second felonyoffender adjudication and remanding for resentencing, including further proceedings ondefendant's second violent felony offender status, and otherwise affirmed.
With regard to the manslaughter and attempted murder conviction under indictment No.2227/02, as the People concede, since defendant committed these crimes prior to the effectivedates of amendments to Penal Law § 60.35 providing for the imposition of DNA databankfees and increasing the mandatory surcharge and crime victim assistance fees defendant'ssentence is unlawful to the extent indicated.
With regard to the rape conviction under indictment No. 4811/03, as the People concede,defendant was improperly adjudicated a second violent felony offender because the adjudicationwas based on a predicate conviction that did not meet the sequentiality requirement of Penal Law§ 70.04 (1) (b) (ii). However, under the circumstances, the People are entitled to anopportunity to establish, on the basis of a different conviction, that defendant is nonetheless asecond violent felony offender (see People v Sailor, 65 NY2d 224 [1985], certdenied 474 US 982 [1985]). Since there is to be a resentencing on this indictment in anycase, the sentencing court should take note that because the crime was committed on [*2]February 20, 1996, defendant is not subject to any period ofpostrelease supervision, and is subject to the fee and surcharge schedule applicable as of thatdate. Concur—Andrias, J.P., Nardelli, Sweeny, DeGrasse and Freedman, JJ.