| People v Jimenez |
| 2015 NY Slip Op 07914 [132 AD3d 597] |
| October 29, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jose Jimenez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Charles H. Solomon,J.), rendered December 12, 2014, resentencing defendant, as a second violent felonyoffender, to a term of seven years, unanimously reversed, on the law, the second violentfelony offender adjudication vacated, and the matter remanded for resentencingincluding a new determination as to defendant's predicate felony status. Appeal fromjudgment (same court and Justice), rendered December 19, 2011, as amended February22, 2012 and December 12, 2014, convicting defendant, upon his plea of guilty, ofattempted robbery in the second degree, unanimously dismissed, as subsumed in theappeal from the judgment of resentence.
Defendant made a CPL 440.20 motion to set aside his sentence of 12 years to life asa persistent violent felony offender on the grounds that his 2000 conviction could not beused as a predicate conviction because it was unconstitutionally obtained within themeaning of CPL 700.15 (7) (b), and that counsel was ineffective in failing to raise thatissue at the appropriate time. In response, the People did not dispute these claims, andconceded that defendant did not qualify as a persistent violent felony offender. The courtgranted the motion, but resentenced defendant as a second violent felony offender,without considering whether defendant's 1993 conviction [*2]fell within or without the 10-year time bar for predicatefelonies. In addition, this does not preclude the People from relying on other convictions,if any. Accordingly, defendant must be resentenced. Concur—Gonzalez, P.J.,Friedman, Gische and Kapnick, JJ.