| People v Francis |
| 2018 NY Slip Op 05971 [164 AD3d 1108] |
| September 6, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Gerald Francis, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), forrespondent.
Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or aboutApril 22, 2016, which denied defendant's CPL 440.20 motion to set aside his sentence,unanimously affirmed.
Defendant claims that on his 1988 conviction of third-degree weapons possession he wasunlawfully sentenced, as a first felony offender, to a term of six months' incarceration concurrentwith five years' probation, when he should have been sentenced, as a second felony offender, toat least two to four years in state prison, due to his 1982 conviction for criminal sale of acontrolled substance in the fifth degree. Thus, he is essentially claiming that the court erred in hisfavor by imposing a lesser sentence than the one required by his prior record. Defendantacknowledges that he seeks a resentencing in order to ultimately move to withdraw his plea onthe ground that the new, lawful sentence would be contrary to his original plea agreement. The1988 conviction is also one of the bases of defendant's 1997 adjudication as a persistent violentfelony offender.[FN*]
Under this Court's established precedent, however, because defendant was not "adverselyaffected" by the court's error in sentencing him on his 1988 conviction in this case, and, indeed,benefitted from the imposition of a lesser sentence than he would have received had he beenproperly adjudicated, defendant's CPL 440.20 claim must be rejected without consideration of itsmerits (CPL 470.15 [1]; see also People v Garcia, 298 AD2d 107, 108 [1st Dept 2002][holding that the defendant did not show that "he was 'adversely affected' (CPL 470.15 [1]) by aruling in his favor" that purportedly permitted his attorney to discriminate based on gender duringjury selection], lv denied 99 NY2d 558 [2002]; People v Flores, 167 AD2d 160,160 [1st Dept 1990] [finding that the defendant's illegal sentence, a minimum sentence that wastoo low for a second violent felony offender, did not have to be vacated since defendant was "thebeneficiary of an error, and no prejudice ensue(d) to him"], lv denied 77 NY2d 906[1991]). We note that other precedent is in accord (see e.g. People v McKinney, 162 AD3d 1073, 1074 [2d Dept2018], citing [*2]People v Witherspoon, 100 AD3d 809, 809-810 [2d Dept2012] [defendant, notwithstanding having been illegally sentenced as a second felony offenderrather than a second violent felony offender, was not entitled to vacatur of his sentence because"he was not adversely affected by any illegality in the sentence"], lv denied 20 NY3d1105 [2013]; People v Chapman, 229 AD2d 789 [3d Dept 1996] [refusal to considercourt's improper questioning of jurors not addressed for failure of defendant to allege prejudice,citing CPL 470.15]; compare People vEstremera, 30 NY3d 268, 273 [2017] [defendant adversely affected by violation of hisright under CPL 380.40 to be present for Penal Law § 70.85 resentencing]).
Although this Court's previous decision in People v Gould (131 AD3d 874 [1st Dept 2015]) concernsdefendant (under the name of Gould), it does not help him here. In Gould, the Peopleconceded the necessity of defendant's resentencing (see 131 AD3d at 874), acircumstance not present here. Moreover, in Gould, this Court had no occasion toconsider the effect of the CPL 470.15 (1) jurisdictional bar on defendant's appeal because theissue was not raised on appeal.
As we have no jurisdiction to reach the merits of defendant's claim, his argument as to theillegality of his sentence is unavailing (cf. People v Scarbrough, 66 NY2d 673 [1985],revg on dissenting mem of Boomer, J. 105 AD2d 1107, 1107-1109 [4th Dept 1984]; People v Heisler, 150 AD3d 612,614 [1st Dept 2017], lv denied 30 NY3d 950 [2017]; People v Gould, 131 AD3dat 874 [all holding that recidivist sentencing is mandatory]).
For the same reason, we need not reach the issue of whether the motion court providentlyexercised its discretion in denying defendant's motion (his second) on CPL 440.20 (3) grounds(see People v Thomas, 153 AD3d860 [2d Dept 2017], lv granted 30 NY3d 1064 [2017]). Concur—Friedman,J.P., Sweeny, Kapnick, Kahn, Oing, JJ.
Footnote *:The legality of defendant'sadjudication and sentencing for his 1997 conviction is pending before this Court and scheduledfor argument in the October 2018 Term (People v Benjamin, calendar No. 2018-505). Inaddition, the appeal from another of his subsequent convictions is pending before us on similarissues, having to do with his adjudication for his 1991 conviction as a second violent felonyoffender, and is also scheduled for the October 2018 Term (People v Gould, calendar No.2017-1042).