| People v Thomas |
| 2017 NY Slip Op 06301 [153 AD3d 860] |
| August 23, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Michael Thomas, Respondent. |
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyceof counsel), for appellant.
Lynn W. L. Fahey, New York, NY (Melissa S. Horlick of counsel), for respondent.
Appeal by the People from an order of the Supreme Court, Kings County (Mangano, Jr., J.),entered March 1, 2016, which granted the defendant's motion pursuant to CPL 440.20 (1) to setaside a sentence of the same court (DeLury, J.), imposed December 14, 1993, upon hisconviction of robbery in the third degree, upon a jury verdict, and directed that he beresentenced.
Ordered that the order is affirmed.
In 1989, the defendant pleaded guilty under New York County indictment No. 2696/89 toone count of attempted robbery in the first degree. On April 18, 1989, he was sentenced for thatcrime as a second felony offender, based upon two earlier convictions in Kings County. Also in1989, the defendant pleaded guilty under Kings County indictment No. 7002/89 to one count ofattempted robbery in the first degree. On November 2, 1989, the defendant was sentenced for thatcrime as a second felony offender, again based upon his two earlier convictions in KingsCounty.
In 1993, the defendant was charged under Kings County indictment No. 1652/93 with, interalia, robbery in the third degree. The indictment alleged that the robbery was committed onFebruary 6, 1993. He was convicted by a jury, and on December 4, 1993, he was sentenced as asecond felony offender based upon his convictions under New York County indictment No.2696/89 and Kings County indictment No. 7002/89.
In 2008, the defendant moved to vacate the sentence imposed under New York Countyindictment No. 2696/89, arguing that he had erroneously been adjudicated a second felonyoffender because he had been granted youthful offender status on the two earlier convictions inKings County. On February 26, 2009, the Supreme Court, New York County, granted his motion,vacated his sentence, and resentenced him without adjudicating him a second felony offender. In2011, the defendant moved to vacate the sentence imposed under Kings County indictment No.7002/89 on the same basis. In an order dated February 23, 2012, the Supreme Court, KingsCounty, granted his motion, vacated his sentence, and resentenced him without adjudicating hima second felony offender.
In 2013, the defendant moved to vacate the sentence imposed in this case. He argued that hisadjudication as a second felony offender was improper, since that adjudication was based [*2]on his convictions under New York County indictment No. 2696/89and Kings County indictment No. 7002/89. He argued that those convictions could not serve aspredicate felonies since those convictions had been vacated, and he had been resentenced after hecommitted the instant crime. The Supreme Court denied his motion in an order dated March 4,2014.
On October 8, 2014, this Court decided People v Esquiled (121 AD3d 807 [2014]), in which we determinedthat "for purposes of determining whether a prior conviction is a predicate felony conviction, thesentence upon such prior conviction 'must have been imposed before commission of the presentfelony' " (id. at 808, quoting Penal Law § 70.06 [1] [b] [ii]). Thedefendant then moved a second time to vacate his sentence, based upon our holding in Peoplev Esquiled. The Supreme Court granted the motion, and the People appeal.
CPL 440.20 (3) provides that a court "may" deny a motion to set aside a sentence upon theground that it was unauthorized, illegally imposed, or otherwise invalid as a matter of law when"the ground or issue raised thereupon was previously determined on the merits upon a priormotion or proceeding in a court of this state, other than an appeal from the judgment, or upon aprior motion or proceeding in a federal court, unless since the time of such determination therehas been a retroactively effective change in the law controlling such issue." However, CPL440.20 (3) further provides the court with the discretion, in the interest of justice and for goodcause shown, to "grant the motion if it is otherwise meritorious." Therefore, the procedural barsset forth in CPL 440.20 (3) are discretionary.
Here, the Supreme Court providently exercised its discretion in granting the defendant'ssecond motion to vacate his sentence because the defendant established good cause for thesecond motion and the second motion had merit (see CPL 440.20 [3]; People v Jamison, 138 AD3d1020, 1021 [2016]; People vEsquiled, 121 AD3d 807 [2014]). Mastro, J.P., Rivera, Hall and Maltese, JJ.,concur.