Opinion
04-20-2016
The PEOPLE, etc., respondent, v. Edward JAMISON, appellant.
Seymour W. James, Jr., New York, N.Y. (Steven J. Miraglia of counsel), for appellant, and appellant pro se. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Jonathan K. Yi of counsel), for respondent.
Seymour W. James, Jr., New York, N.Y. (Steven J. Miraglia of counsel), for appellant, and appellant pro se.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Jonathan K. Yi of counsel), for respondent.
Opinion
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, his motion pursuant to CPL 440.20 to set aside his sentence.
ORDERED that the order is reversed, on the law, the defendant's motion pursuant to CPL 440.20 to set aside his sentence is granted, the sentence is vacated, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.
The defendant's adjudication as a second violent felony offender was undermined when the sentence on the predicate violent felony conviction in New York County was set aside and the defendant was resentenced. That resentencing had the effect of taking the New York County conviction out of sequence for purposes of Penal Law § 70.04(1)(b)(ii). Accordingly, the Supreme Court should have granted the defendant's motion pursuant to CPLR 440.20 to set aside his sentence (see People v. Esquiled, 121 A.D.3d 807, 808, 993 N.Y.S.2d 578; People v. Robles, 251 A.D.2d 20, 21, 673 N.Y.S.2d 654; cf. People v. Boyer, 22 N.Y.3d 15, 24–25, 977 N.Y.S.2d 731, 999 N.E.2d 1176).
RIVERA, J.P., BALKIN, DICKERSON and HINDS–RADIX, JJ., concur.