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[977 N.Y.S.2d 732]
Davison Law Office, PLLC, Canandaigua (Mark C. Davison of counsel), for appellant in the first above-entitled action.
P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent in the first above-entitled action.
Cyrus R. Vance, Jr., District Attorney, New York City (Dana Poole and Alan Gadlin of counsel), for appellant in the second above-entitled action.
Steven Banks, Legal Aid Society, Criminal Appeals Bureau, New York City (Elon Harpaz of counsel), for respondent in the second above-entitled action.
[999 N.E.2d 1177] The primary issue before us is whether, for purposes of determining the sequentiality of a defendant's current and prior convictions under New York's sentence enhancement statutes, the controlling date of sentence for the defendant's prior conviction is the original date of sentence for that conviction or the date of a later resentencing which rectifies the flawed imposition of postrelease supervision (PRS) in accordance with our decision in People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008). We hold that, in this context, the date of sentence for a defendant's prior conviction is the original date on which the defendant received a lawful prison term upon a valid conviction for that prior crime, regardless of whether the defendant or the government seeks resentencing on that conviction to correct the error described in Sparber. Therefore, at sentencing for a more recent crime, the defendant's prior conviction qualifies as a predicate felony conviction if the original date of sentence precedes the commission of the present offense.
People v. Boyer
Prior to 2008, defendant Daniel Boyer had several felony convictions. In his most recent prior felony case, defendant received a valid conviction for attempted burglary in the second degree in 2002, and after further proceedings not relevant to his present appeal, defendant was sentenced on that conviction to a lawful determinate prison term in 2005. Upon the imposition of that sentence, the trial court did not pronounce a mandatory PRS term ( see Penal Law § 70.45 ), though a five-year PRS term was entered on the commitment order.
Defendant completed his prison term and started to serve a period of PRS in 2008. However, shortly after his release to PRS, defendant was arrested for committing a new burglary, and he was indicted on charges of grand larceny in the fourth degree and burglary in the second degree. Defendant entered a negotiated guilty plea to attempted burglary in the second degree (Penal Law §§ 110.00, 140.25  ) in exchange for a promised indeterminate prison term of from 13 1/2 years to life. On February 18, 2009, the court adjudicated defendant a persistent violent felony offender based in part on defendant's 2002 conviction, and the court imposed the promised sentence.
Thereafter, the Department of Corrections and Community Supervision (DOCCS) notified the trial court that the court had to resentence defendant for his 2002 conviction pursuant to Correction Law § 601-d by either pronouncing a term of PRS or excising PRS from defendant's [999 N.E.2d 1178] [977 N.Y.S.2d 733] sentence upon consent of the People. In November 2009, upon receiving the People's consent, the court resentenced defendant on his 2002 conviction by maintaining his original prison term and declining to add a PRS term to his sentence ( see Penal Law § 70.85).
On November 24, 2009, defendant moved to vacate his sentence for his 2009 conviction. Defendant pointed out that, under Penal Law § 70.04(1)(b)(ii), a prior conviction does not qualify as a predicate felony conviction that can enhance a defendant's sentence unless the sentence for the prior conviction was " imposed before commission of the present felony." Citing this sequentially requirement, defendant maintained that the 2009 ...