| People v Boyer |
| 2012 NY Slip Op 00422 [91 AD3d 1183] |
| January 26, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Daniel Boyer,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Mercure, A.P.J. Appeals (1) from a judgment of the County Court of Albany County(Breslin, J.), rendered February 18, 2009, convicting defendant upon his plea of guilty of thecrime of attempted burglary in the second degree, and (2) by permission, from an order of saidcourt, entered January 22, 2010, which denied defendant's motion pursuant to CPL 440.20 to setaside his sentence, without a hearing.
In 2008, defendant was charged by indictment with burglary in the second degree and grandlarceny in the fourth degree. He pleaded guilty to attempted burglary, waiving his right to appeal.He was sentenced, as a persistent violent felony offender, to 13½ years to life in prison.Defendant now appeals from the judgment of conviction, arguing that the guilty plea was notknowing, voluntary and intelligent because County Court failed to advise him that the sentenceimposed would run consecutively to his prior undischarged prison term. Penal Law § 70.25 (2-a) requires [*2]that defendant's sentence on the instant conviction runconsecutively to his undischarged term, and defendant was given no reason to believe "that partor all of [the] sentence would be effectively nullified, by running simultaneously with [the]sentence[ ] he had already received" (People ex rel. Gill v Greene, 12 NY3d 1, 6 [2009], certdenied 558 US —, 130 S Ct 86 [2009]; accord People v Watts, 78 AD3d at1593; People v Lagas, 76 AD3d at 387).
Defendant also appeals, by permission, from County Court's denial of his CPL 440.20motion to vacate his sentence and be resentenced as a second violent felony offender.Specifically, defendant argues that he is entitled to such relief because one of the prior felonyconvictions supporting his adjudication as a persistent violent felony offender was laterdetermined to be subject to resentencing based upon the court's failure to pronounce the term ofpostrelease supervision (see People vSparber, 10 NY3d 457, 472 [2008]). Because resentencing in that case did not occuruntil after defendant committed the crime in the present case (see People v Boyer, 91AD3d 1194 [2012] [decided herewith]), defendant contends that the prior conviction cannot beconsidered a predicate felony conviction for purposes of sentencing in this case (seePenal Law § 70.04 [1] [b] [ii]). We disagree.
In People v Acevedo (17 NY3d297 [2011]), the Court of Appeals held that defendants will not be permitted, "by means of[seeking] vacatur and resentence" on prior convictions in which the court failed to imposerequired postrelease supervision, "to render their prior convictions useless as predicates toenhance punishment for the crimes they subsequently committed" (id. at 303). The Courtexplained that "[r]esentence is not a device appropriately employed [by a defendant] simply toalter a sentencing date and thereby affect the utility of a conviction as a predicate for theimposition of enhanced punishment" (id.). The Court expressly left open the question of"what effect a bona fide Sparber resentence"—i.e., one in which the Department ofCorrections and Community Supervision, rather than a defendant, seeks resentencing pursuant toCorrection Law § 601-d and Penal Law § 70.85—"should have for predicatefelony purposes" (id.; but seePeople v Butler, 88 AD3d 470, 473 [2011] [concluding that the Court "implicitlyrejected" the position of the concurring judges, who would have held that predicate felony statusis not affected by any postrelease resentencing]).
Here, the Department of Corrections and Community Supervision sought resentencing ondefendant's prior conviction and, thus, this case presents the question that was explicitly left openin Acevedo. In our view, the rationale set forth by the concurrence authored by JudgePigott in Acevedo is persuasive. As the concurring judges noted, the Court of Appealshas recently indicated that "when a defendant is resentenced based upon a Sparber error,the underlying conviction remains as does that part of the sentence imposing incarceration,because, under Sparber and its progeny, the purpose of the resentence is simply toprovide a process to correct a 'procedural error,' 'akin to a misstatement or clerical error' "(People v Acevedo, 17 NY3d at 304 [Pigott, J., concurring], quoting People v Sparber, 10 NY3d 457,472 [2008]; see People v Lingle, 16NY3d 621, 635 [2011]). Therefore, as in Acevedo, the original sentencing date onthe prior conviction—as opposed to the resentencing date—controls in determiningwhether the prior conviction may be considered as a predicate in sentencing for subsequentcrimes, and defendant's CPL 440.20 motion was properly denied.
Lahtinen, Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment and orderare affirmed. [As corrected, see 2012 NY Slip Op 68905(U).]