Opinion
2012-03-20
The PEOPLE of the State of New York, Respondent, v. Kevin DAVIS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Tomas R. Villecco of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Tomas R. Villecco of counsel), for respondent.
ANDRIAS, J.P., SWEENY, MOSKOWITZ, FREEDMAN, MANZANET–DANIELS, JJ.
Judgment, Supreme Court, Bronx County (John S. Moore, J.), rendered March 12, 2008, convicting defendant, upon his plea of guilty, of attempted rape in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.
Defendant was properly sentenced as a persistent violent felony offender. There was no violation of the requirement of sequentiality of convictions ( see Penal Law § 70.04[1][b][ii]; People v. Morse, 62 N.Y.2d 205, 476 N.Y.S.2d 505, 465 N.E.2d 12 [1984], appeal dismissed sub nom. Vega v. New York, 469 U.S. 1186, 105 S.Ct. 951, 83 L.Ed.2d 959 [1985] ).
In 1983, defendant was convicted of the violent felony of criminal possession of a weapon in the third degree and sentenced to probation. In 1985, he was convicted of the violent felony of rape in the first degree and sentenced, as a second violent felony offender, to a term of 12 1/2 to 25 years. As the 1985 rape conviction constituted a violation of the probation imposed on the 1983 conviction, defendant was resentenced on the 1983 conviction to a concurrent term of 2 1/3 to 7 years. On the present conviction of attempted rape in the first degree, defendant was sentenced as a persistent violent felony offender pursuant to Penal Law § 70.08, based on his two prior violent felony convictions.
There is nothing in the Penal Law to indicate that a resentencing necessarily resets the controlling sentencing date for purposes of sequentiality. However, the relevant statutes have been interpreted to mean that the invalidation of a judgment may affect sequentiality ( see People v. Bell, 73 N.Y.2d 153, 538 N.Y.S.2d 754, 535 N.E.2d 1294 [1989] ). Here, defendant concedes that he received a valid sentence of probation in 1983. The resentencing based on revocation of that probation did nothing to invalidate the original sentence ( see People v. Mack, 301 A.D.2d 863, 755 N.Y.S.2d 437 [2003], lv. denied 100 N.Y.2d 540, 763 N.Y.S.2d 6, 793 N.E.2d 420 [2003] ). Accordingly, “the revocation of probation on the prior ... offense may not be ‘employed ... to leapfrog [the] sentence forward so as to vitiate its utility as a sentencing predicate’ ” ( People v. Newton, 91 A.D.3d 1281, 937 N.Y.S.2d 646 [2012] [quoting People v. Acevedo, 17 N.Y.3d 297, 302, 929 N.Y.S.2d 55, 952 N.E.2d 1047 [2011] ).