Opinion
2012-12-11
The PEOPLE of the State of New York, Appellant, v. David SNIPES, Defendant–Respondent.
Cyrus R. Vance, Jr., District Attorney, New York (Sara M. Zausmer of counsel), for appellant. Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for respondent.
Cyrus R. Vance, Jr., District Attorney, New York (Sara M. Zausmer of counsel), for appellant. Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for respondent.
ANDRIAS, J.P., FRIEDMAN, DeGRASSE, MANZANET–DANIELS, GISCHE, JJ.
Judgment of resentence, Supreme Court, New York County (Ruth Pickholz, J.), rendered September 23, 2011, resentencing defendant as a second violent felony offender, and bringing up for review an order of the same court and Justice, entered on or about May 16, 2011, which granted defendant's CPL 440.20 motion to set aside his sentence as a persistent felony offender, and an order of the same court and Justice, entered on or about August 1, 2011, which, upon reargument, adhered to the May 16, 2011 order, unanimously reversed, on the law, and the original sentence as a persistent violent felony offender reinstated. Appeal from the May 16, 2011 order, unanimously dismissed, as subsumed in the appeal from the judgment.
The court erred in granting defendant's motion to set aside his sentence on the ground that his adjudication as a persistent violent felony offender was unlawful. “There is nothing in the Penal Law to indicate that a resentencing necessarily resets the controlling sentencing date for purposes of sequentiality” ( People v. Davis, 93 A.D.3d 524, 524, 940 N.Y.S.2d 256 [1st Dept.2012],lv. denied19 N.Y.3d 995, 951 N.Y.S.2d 471, 975 N.E.2d 917 [2012] ). This Court, citing People v. Acevedo, 17 N.Y.3d 297, 929 N.Y.S.2d 55, 952 N.E.2d 1047 [2011], has held that where a defendant's resentencing was at the behest of the Division of Parole for purpose of imposing a period of postrelease supervision, the resentencing date controls whether a conviction meets the sequentiality requirement for sentencing as a persistent violent felony offender ( see People v. Butler, 88 A.D.3d 470, 931 N.Y.S.2d 277 [1st Dept.2011],lv. denied18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012];see also People v. Sanders, 99 A.D.3d 575, 952 N.Y.S.2d 537 [1st Dept.2012]; but see People v. Boyer, 91 A.D.3d 1183, 940 N.Y.S.2d 677 [3d Dept.2012],lv. granted19 N.Y.3d 1024, 953 N.Y.S.2d 557, 978 N.E.2d 109 [2012] ). However, this rule does not apply where, as here, the resentence was a nullity under People v. Williams, 14 N.Y.3d 198, 899 N.Y.S.2d 76, 925 N.E.2d 878 [2010],cert. denied562 U.S. ––––, 131 S.Ct. 125, 178 L.Ed.2d 242 [2010], and was thus ineffective to alter the relevant sentencing sequence ( see Acevedo, 17 N.Y.3d at 302, 929 N.Y.S.2d 55, 952 N.E.2d 1047 [opinion of Lippman, C.J.] ). Accordingly, defendant was properly sentenced as a persistent violent felony offender at his original sentencing in March of 2010.