The opinion of the court was delivered by: Pigott, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Under the Drug Law Reform Act of 2009 ("2009 DLRA"), "[a]ny person in the custody of the department of corrections and community supervision convicted of a class B felony offense as defined in . . . [Penal Law article 220] which was committed prior to [January 13, 2005]" and "who is serving an indeterminate sentence with a maximum term of more than three years, may," subject to certain exclusions, "apply to be resentenced to a determinate sentence in accordance with . . . [Penal Law §§ 60.04 and 70.70] in the court which imposed the sentence" (CPL 440.46
). Penal Law § 70.70 distinguishes between the sentence that a resentencing court must impose on a second felony drug offender who has a prior non-violent felony conviction, and one it must impose on a second felony drug offender who has a prior violent felony conviction (see Penal Law § 70.70  [a], 4 [a]). The range of determinate sentences available under the non-violent category is more lenient than it is for the violent (see Penal Law §§ 70.70  [b] [i] [minimum of 2 years and a maximum of 12 for a class B felony];  [b] [i] [minimum of 6 years and a maximum of 15 for a class B felony]).
These appeals involve a similar issue, albeit in different contexts. At issue in People v Dais is whether the People may introduce a new predicate felony statement at the resentencing proceeding to demonstrate that the defendant must be adjudicated a second felony drug offender whose prior conviction was for a violent felony (thereby requiring his resentencing under Penal Law § 70.70  [b]), notwithstanding the fact that the defendant, at his original sentencing had been adjudicated a second felony offender based on a prior non-violent felony. The issue presented in People v Stanley is the converse of the one in Dais; in Stanley, it is the defendant who claims that he should be permitted to challenge at his resentencing whether his prior felony conviction was for a non-violent felony, thereby requiring that he be resentenced pursuant to Penal Law § 70.70 (3) (b). We conclude that a de novo review of whether the defendant's prior felony is non-violent or violent is proper in a 2009 DLRA resentencing proceeding.
In June 2005, Quinton Dais was convicted of one count of criminal sale of a controlled substance in the third degree, a class B felony, arising from a buy and bust arrest in October 2004. Prior to sentencing, the People filed a predicate felony statement alleging that Dais had a 1994 felony conviction for criminal sale of a controlled substance in the third degree, a non-violent felony. Dais admitted to that conviction and the court sentenced him as a second felony offender to an indeterminate term of 7 to 14 years' imprisonment. His conviction was affirmed on appeal (47 AD3d 421 [1st Dept 2008] lv denied 10 NY3d 809 ).
In October 2009, Dais moved for resentencing under the 2009 DLRA, claiming that he was entitled to be resentenced as a second felony offender whose prior felony conviction was for a non-violent felony (see Penal Law § 70.70  [a]). The People countered that, assuming Dais was eligible for resentencing, he should be resentenced as a second felony drug offender who had been previously convicted of a violent felony (see Penal Law § 70.70  [a] [emphasis supplied]), pointing to Dais's 1984 conviction for robbery in the second degree. Dais argued that the People were barred by the doctrines of collateral estoppel and law of the case from "litigating anew" defendant's predicate felony status.
Supreme Court permitted the People to file a predicate felony statement relative to the 1984 second degree robbery conviction. Dais was then arraigned on that statement and he neither disputed its contents nor challenged the constitutionality of the conviction. The court adjudicated Dais a second felony drug offender with a prior violent felony conviction under § 70.70 (4) and resentenced him to a determinate term of 6 years' imprisonment with 3 years' postrelease supervision. The Appellate Division unanimously affirmed, holding that Dais's resentencing motion "placed the case in a procedural posture that made it material, for the first time, that he was not only a predicate felon, but a predicate violent felon as well" (81 AD3d 432, 433 [1st Dept 2011] [citations omitted]). A Judge of this Court granted Dais leave to appeal.
On October 31, 2004, Donald Stanley was arrested and charged for, among other things, two counts of criminally using drug paraphernalia in the second degree, and criminal possession of a controlled substance in the third and fifth degrees. A jury convicted Stanley on those counts. At sentencing, the People filed predicate statements requesting that Stanley be sentenced as a second felony offender and persistent felony offender, relying on Stanley's November 1984 conviction for attempted criminal sale of a controlled substance in the third degree, and his July 1994 convictions for felony possession of cocaine and robbery in the second degree under Florida Statutes 893.13 and 812.13, respectively.
Stanley did not deny any of the allegations in those statements, nor did he challenge the constitutionality of his prior convictions. The court sentenced him as a second felony offender to an indeterminate term of 12 1/2 to 25 years' imprisonment on the count of criminal possession of a controlled substance in the third degree (a class B felony), 3 1/2 to 7 years' imprisonment on the count of criminal possession of a controlled substance in the fifth degree, and one year for each count of criminally using drug paraphernalia in the second degree, with all sentences running concurrently. Stanley appealed the underlying drug suppression ruling but did not challenge his second felony offender adjudication, and the Appellate Division affirmed the judgment of conviction (50 AD3d 1066 [2d Dept 2008] lv denied 10 NY3d 964 ).
In October 2009, Stanley moved for resentencing under the 2009 DLRA, asserting that he should not be resentenced as a predicate felon because the Florida statute under which he had been adjudicated a second felony offender, i.e., robbery in the second degree, was not equivalent to a New York felony or violent felony.*fn1 The appropriate resentence, according to Stanley, should be 1-9 years' imprisonment and 1-2 years postrelease supervision pursuant to Penal Law §§ 70.45 (2) (b) and 70.70 (2). As relevant here, the People opposed resentencing on the ground that Stanley forfeited his right to challenge his adjudication as a predicate felon at his 2006 sentencing by failing to challenge his Florida robbery conviction at that time.
Supreme Court found Stanley eligible for resentencing under the 2009 DLRA, but resentenced him as a second felony drug offender with a prior felony conviction for a violent felony, noting that Stanley's admission to having committed the Florida offenses at the original sentencing was binding. He was resentenced to a determinate term of 10 years' imprisonment with 3 years' postrelease supervision on the count of criminal possession of a controlled substance in the third degree, and a determinate sentence of 4 1/2 years' imprisonment with 2 years' postrelease supervision on the count of criminal possession of a controlled substance in the fifth degree, the sentences to run concurrently.
The Appellate Division affirmed, holding that Stanley
"was not entitled to a de novo determination of
his predicate felony status at the resentencing proceeding, since his
predicate felony status was already determined at the original
sentencing or on direct appeal," and that he "was properly resentenced
as a second felony offender with a prior violent ...