| People v Green |
| 2009 NY Slip Op 04261 [62 AD3d 1024] |
| May 26, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamalGreen, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y.Brodt, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Queens County (Roman,J.), imposed November 14, 2006, after a hearing, held upon remittitur from this Court forresentencing (see People v Green, 31 AD3d 578 [2006]), upon his conviction of burglaryin the first degree, assault in the second degree, criminal possession of a weapon in the seconddegree, criminal possession of a weapon in the third degree, and endangering the welfare of achild (three counts), upon a jury verdict.
Ordered that the resentence is affirmed.
In 1999, upon his conviction of burglary in the first degree and other offenses, the defendantwas sentenced, as a second violent felony offender, to a determinate term of imprisonment of 20years and lesser concurrent terms. Based on a notation in the certificate of disposition relating tothe defendant's conviction of criminal possession of a weapon in the third degree in 1989,indicating that the defendant may have pleaded guilty to a violation of Penal Law § 265.02(1), which was not a violent felony offense, this Court vacated the defendant's 1999 sentence andremitted the matter for resentencing, to be preceded by a hearing pursuant to CPL 400.15 todetermine whether the defendant was a second violent felony offender (see People v Green,31 AD3d 578 [2006]).
At the hearing directed by this Court, the People established that the notation in thecertificate of disposition was attributable to a defect in the Supreme Court's computerizedrecord-keeping system, which caused random information to be entered into that court's records.In addition, the People submitted copies of the indictment and the transcript of the pleaproceedings relating to the 1989 conviction, which clearly indicated that the defendant pleadedguilty to a violation of Penal Law former § 265.02 (4) (now Penal Law § 265.03[3]) which was then designated as a violent felony offense (see Penal Law former§ 70.02 [1] [c]). Thus, the People proved, beyond a reasonable doubt, that the offense ofwhich the defendant was convicted in 1989 was a violent felony offense, and that the defendantwas, therefore, a second violent felony offender (see CPL 400.15 [7] [a]).
After determining that the defendant had been correctly adjudicated a second violent felonyoffender, the Supreme Court properly declined to consider imposing a lesser sentence based onthe [*2]defendant's behavior and accomplishments subsequent tothe original sentencing. This Court remitted this matter to the Supreme Court, Queens County,for a limited purpose, and once that court determined that the defendant had properly beenadjudicated a second violent felony offender at the original sentencing, there was no occasion forthe court to conduct a plenary resentencing. Since the Supreme Court correctly determined thatthere was no infirmity in the original sentence, that court, unlike the courts in the cases reliedupon by the defendant (see People vDesulma, 26 AD3d 443 [2006]; People v Van Pelt, 186 AD2d 604 [1992]), wasnot called upon to reconsider the propriety of the original sentence. Moreover, even if a plenaryresentencing had been appropriate, "the proper focus of the inquiry [would have been] ondefendant's record prior to the commission of the crime" (People v Kuey, 83 NY2d 278,282 [1994]). Thus, under the circumstances of this case, the Supreme Court, upon resentencing,properly reimposed the original sentence. Prudenti, P.J., Miller, Eng and Belen, JJ., concur.