New York Supreme and/or Appellate Courts Appellate Division, First Department
March 20, 2012
THE PEOPLE OF THE STATE OF NEW YORK,
People v Davis
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.
Decided on March 20, 2012
Andrias, J.P., Sweeny, Moskowitz, Freedman, Manzanet-Daniels, JJ.
Judgment, Supreme Court, Bronx County (John S. Moore, J.), rendered March 12, 2008, convicting defendant, upon his plea of guilty, of attempted rape in the first degree, and sentencing him, as a persistent violent felony offender, to a term of 16 years to life, unanimously affirmed.
Defendant was properly sentenced as a persistent violent felony offender. There was no violation of the requirement of sequentiality of convictions (see Penal Law § 70.04[b][ii]; People v Morse, 62 NY2d 205 , appeal dismissed sub nom. Vega v New York, 469 US 1186 ).
In 1983, defendant was convicted of the violent felony of criminal possession of a weapon in the third degree and sentenced to probation. In 1985, he was convicted of the violent felony of rape in the first degree and sentenced, as a second violent felony offender, to a term of 12½ to 25 years. As the 1985 rape conviction constituted a violation of the probation imposed on the 1983 conviction, defendant was resentenced on the 1983 conviction to a concurrent term of 2 to 7 years. On the present conviction of attempted rape in the first degree, defendant was sentenced as a persistent violent felony offender pursuant to Penal Law § 70.08, based on his two prior violent felony convictions.
There is nothing in the Penal Law to indicate that a resentencing necessarily resets the controlling sentencing date for purposes of sequentiality. However, the relevant statutes have been interpreted to mean that the invalidation of a judgment may affect sequentiality (see People v Bell, 73 NY2d 153 ). Here, defendant concedes that he received a valid sentence of probation in 1983. The resentencing based on revocation of that probation did nothing to invalidate the original sentence (see People v Mack, 301 AD2d 863 , lv denied 100 NY2d 540 ). Accordingly, "the revocation of probation on the prior...offense may not be employed...to leapfrog [the] sentence forward so as to vitiate its utility as a sentencing predicate'" (People v Newton, AD2d, 2012 NY Slip Op 00551  [quoting People v Acevedo, 17 NY3d 297, 302 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 20, 2012
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