| People v Jamison |
| 2016 NY Slip Op 03013 [138 AD3d 1020] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Edward Jamison, Appellant. |
Seymour W. James, Jr., New York, NY (Steven J. Miraglia of counsel), forappellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Nicoletta J. Caferri, and Jonathan K. Yi of counsel), forrespondent.
Appeal by the defendant, by permission, from an order of the Supreme Court,Queens County (Kron, J.), dated April 26, 2011, which denied, without a hearing, hismotion pursuant to CPL 440.20 to set aside his sentence.
Ordered that the order is reversed, on the law, the defendant's motion pursuant toCPL 440.20 to set aside his sentence is granted, the sentence is vacated, and the matter isremitted to the Supreme Court, Queens County, for resentencing in accordanceherewith.
The defendant's adjudication as a second violent felony offender was underminedwhen the sentence on the predicate violent felony conviction in New York County wasset aside and the defendant was resentenced. That resentencing had the effect of takingthe New York County conviction out of sequence for purposes of Penal Law§ 70.04 (1) (b) (ii). Accordingly, the Supreme Court should have grantedthe defendant's motion pursuant to CPL 440.20 to set aside his sentence (see People v Esquiled, 121AD3d 807, 808 [2014]; People v Robles, 251 AD2d 20, 21 [1998]; cf. People v Boyer, 22 NY3d15, 24-25 [2013]). Rivera, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.