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The People of the State of New York v. Kevin Davis

New York Supreme and/or Appellate Courts Appellate Division, First Department


March 20, 2012

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
KEVIN DAVIS,
DEFENDANT-APPELLANT.

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[1][b][ii]; People v Morse, 62 NY2d 205 [1984], appeal dismissed sub nom. Vega v New York, 469 US 1186 [1985]).

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 [1989]). 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 [2003], lv denied 100 NY2d 540 [2003]). 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 [2012] [quoting People v Acevedo, 17 NY3d 297, 302 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 20, 2012

CLERK

20120320

© 1992-2012 VersusLaw Inc.



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