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The People of the State of New York v. Daniel Boyer

State of New York Supreme Court, Appellate Division Third Judicial Department


January 26, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DANIEL BOYER, APPELLANT.

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

MEMORANDUM AND ORDER

Calendar Date: November 18, 2011

Before: Mercure, Acting P.J., Lahtinen, Spain, Malone Jr. and Kavanagh, JJ.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered November 24, 2009, which resentenced defendant following his conviction upon his plea of guilty of the crime of attempted burglary in the second degree.

In 2002, defendant pleaded guilty to attempted burglary in the second degree and was sentenced as a persistent violent felony offender based upon 1989 and 1994 violent felony convictions (19 AD3d 804, 805 [2005], lv denied 5 NY3d 804 [2005]). Thereafter, the sentence imposed upon defendant's 1994 conviction was vacated (id.). As a consequence, defendant was ultimately resentenced in the present matter as a second violent felony offender (id. at 806; see 36 AD3d 1084 [2007], lv denied 8 NY3d 944 [2007], lv denied 9 NY3d 863 [2007]; Boyer v Miles, 2008 WL 2433534, 2008 US Dist LEXIS 46348 [2008]). Defendant now appeals, contending that County Court erred in sentencing him as a second violent felony offender because no predicate felony statement was filed prior to the resentencing proceeding and he was denied the opportunity to be heard with regard to the predicate felony.

On a previous appeal, this Court adjudicated defendant to be a second violent felony offender based upon the 1989 conviction, which was set forth in the People's predicate felony statement submitted prior to sentencing in 2002 (see 19 AD3d at 805-806). Moreover, defendant has never challenged that predicate felony despite numerous opportunities to do so. Accordingly, we conclude that County Court properly resentenced defendant as a second violent felony offender (see People v Mosley, 70 AD3d 1126, 1127 [2010], lv denied 14 NY3d 890 [2010]; People v Booker, 280 AD2d 785, 785-786 [2001], lv denied 96 NY2d 916 [2001]; cf. People v Anthony, 52 AD3d 864, 864-865 [2008], lv denied 11 NY3d 733 [2008]).

Lahtinen, Spain, Malone Jr. and Kavanagh, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20120126

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