Opinion
14134 Ind. No. 815/10 Case No. 2021-00061
06-29-2021
The PEOPLE of the State of New York, Respondent, v. Timothy NEWMAN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Jennifer L. Watson of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Jennifer L. Watson of counsel), for respondent.
Manzanet–Daniels, J.P., Kern, Mazzarelli, Shulman, JJ.
Judgment of resentence, Supreme Court, Bronx County (Margaret L. Clancy, J), rendered October 13, 2017, which resentenced defendant, as a persistent violent felony offender, to a term of 20 years to life, unanimously affirmed.
The court resentenced defendant "in accordance with the law" within the meaning of CPL 440.40(5) when, upon granting the People's CPL 440.40 motion, the court reinstated defendant's original sentence as a persistent violent felony offender, which had been set aside on grounds later invalidated by the Court of Appeals in People v. Smith, 28 N.Y.3d 191, 43 N.Y.S.3d 771, 66 N.E.3d 641 (2016). Defendant was not entitled to a hearing to challenge the constitutionality of his 2001 predicate felony conviction, which he failed to challenge at the time of his 2013 persistent violent felony offender adjudication (see People v. Vega, 177 A.D.3d 491, 110 N.Y.S.3d 550 [1st Dept. 2019], lv denied 34 N.Y.3d 1163, 120 N.Y.S.3d 273, 142 N.E.3d 1175 [2020] ; People v. Lara, 167 A.D.3d 446, 448, 89 N.Y.S.3d 154 [1st Dept. 2018], lv denied 32 N.Y.3d 1206, 99 N.Y.S.3d 216, 122 N.E.3d 1129 [2019] ; People v. Alvarado, 67 A.D.3d 430, 431, 889 N.Y.S.2d 17 [1st Dept. 2009], lv denied 13 N.Y.3d 936, 895 N.Y.S.2d 327, 922 N.E.2d 916 [2010] ).
Defendant's mandatory minimum life sentence as a recidivist is not unconstitutionally excessive (see People v. Broadie, 37 N.Y.2d 100, 110–11, 371 N.Y.S.2d 471, 332 N.E.2d 338 [1975], cert denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 [1975] ; see also Ewing v. California, 538 U.S. 11, 29–30, 123 S.Ct. 1179, 155 L.Ed.2d 108 [2003] ; Rummel v. Estelle, 445 U.S. 263, 276, 100 S.Ct. 1133, 63 L.Ed.2d 382 [1980] ).