| People v Gould |
| 2015 NY Slip Op 06957 [131 AD3d 874] |
| September 29, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Bernell Gould, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr.of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Diane Princ of counsel), forrespondent.
Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on orabout December 2, 2009, which denied defendant's CPL 440.20 motion to set aside asentence and for resentencing, unanimously reversed, on the law, the motion is granted,the sentence is vacated and the matter is remanded for further proceedings.
As the People concede, defendant's 1991 sentence was invalid as a matter of lawbecause he was incorrectly adjudicated a second felony offender rather than a secondviolent felony offender (see People v Scarbrough, 66 NY2d 673 [1985], revgon dissenting mem of Boomer, J., 105 AD2d 1107, 1107-1109 [4th Dept 1984]).However, contrary to the People's argument, the error cannot be corrected in this casewithout a new sentencing proceeding. The existing predicate felony information setsforth a drug conviction and cannot support a second violent felony offender adjudication,which would require the filing of a new information, followed by proceedings thereon.The issue of whether resentencing in this case would affect the sequentiality of theconvictions supporting defendant's 1997 persistent violent felony offender adjudicationis not before us on this appeal. Concur—Friedman, J.P., Andrias, Saxe, Gischeand Kapnick, JJ.