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People v. Acevedo (N.Y.App.Div. 05/25/2010)

May 25, 2010

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
BENITO ACEVEDO, DEFENDANT-APPELLANT.



Defendant appeals from an order of the Supreme Court, New York County (Renee A. White, J.), entered on or about February 26, 2009, which denied his motion, pursuant to CPL 440.20, to set aside his sentence on a judgment rendered November 14, 2006, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree and sentencing him as a second felony drug offender previously convicted of a violent felony.

The opinion of the court was delivered by: Tom, J.P.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Peter Tom, J.P., Eugene Nardelli, Dianne T. Renwick, Helen E. Freedman, Nelson S. RomÁn, JJ.

70/061671

Defendant appeals from the denial of his CPL 440.20 motion to set aside the sentence imposed upon his adjudication as a second felony drug offender based on a 2001 conviction. Under Penal Law § 70.06(1)(b)(ii), it is the sentence date that determines whether a crime constitutes a predicate offense, not the date of conviction. Since defendant was resentenced for the 2001 crime after the instant offense was committed, the second felony adjudication and the sentence entered thereon must be vacated.

In June 2001, defendant pleaded guilty to attempted robbery in the second degree in full satisfaction of the charges against him. He was adjudicated a second felony offender based on a 1993 Massachusetts conviction for distribution of a controlled substance, and on July 19, he received a determinate sentence of 4 years. However, at sentencing the court did not pronounce the mandatory term of postrelease supervision (PRS). Defendant did not appeal his conviction, nor did he argue that his sentence was illegal. Thereafter, the Department of Correctional Services (DOCS) imposed a five-year period of PRS.

In 2006, in the matter on appeal, defendant was convicted of criminal possession and criminal sale of a controlled substance in the third degree. On November 14 of that year he was adjudicated a second felony drug offender (Penal Law § 70.70[1][b]) based on the 2001 attempted robbery conviction, which was a violent felony (§ 70.02[1][c]). He was sentenced to concurrent terms of six years, to be followed by three years' PRS. On appeal, defendant did not contest his adjudication as a violent predicate felon, and this Court affirmed the conviction (62 AD3d 464 [2009], lv denied 13 NY3d 741 [2009]).

In 2008, defendant brought a motion for resentencing on the 2001 attempted robbery conviction (CPL 440.20), contending that the sentence imposed was illegal because the court had failed to pronounce the mandatory term of PRS (see People v Sparber, 10 NY3d 457 [2008]; Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358 [2008]). At a hearing, defendant related that the present drug offense was committed some six months after his release following completion of his four-year sentence on the 2001 crime. The court declared defendant delinquent and remanded him on the basis of the five-year period of PRS imposed by DOCS.

In response to the motion, the People consented to have defendant's original sentence reimposed without PRS (Penal Law § 70.85 [Transitional exception to determinate sentencing laws]). The court then resentenced defendant to the originally imposed determinate term of four years without any term of PRS (Correction Law § 601-d; Penal Law § 70.85), stating that such sentence was nunc pro tunc to the original sentence date of July 19, 2001.

On the motion at bar, defendant sought to be resentenced on the instant drug offense as a first felony offender, arguing that his 2001 armed robbery conviction no longer qualified as a predicate felony because the original sentence imposed was illegal, requiring that he be resentenced in 2008, after the present offense had been committed. The People opposed, noting that defendant had been resentenced nunc pro tunc pursuant to Penal Law § 70.85. Therefore, they contended, the 2001 conviction retained its original date and properly served as a predicate felony on the instant conviction.

Supreme Court agreed. Construing the defect as "an easily correctable procedural error," as recognized by the Court of Appeals in Sparber (10 NY3d at 472), the court held that the imposition of the original four-year determinate sentence on July 19, 2001 had been lawful and proper. The court thus concluded that it remained a viable predicate for sentence enhancement in connection with the instant drug offense.

A Justice of this Court granted leave to appeal. We now reverse.

Where resentencing occurs after the present offense, we have held that the prior crime does "not qualify as a predicate conviction for purposes of sentencing as a persistent violent felony offender," since "multiple offender status is defined by the plain statutory language, which courts are not free to disregard" (People v Wright, 270 AD2d 213, 215 [2000], lv denied 95 NY2d 859 [2000]). Adjudication as a second felony drug offender requires a predicate conviction of a felony defined in Penal Law § 70.06 (Penal Law § 70.70[1][b]), which "uses the imposition of sentence, not the date of conviction, as the criterion of predicate status" (Matter of Murray v Goord, 298 AD2d 94, ...


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