People v. Boyer
| Decision Date | 16 June 2005 |
| Docket Number | 14020.,15291.,15083. |
| Citation | 799 N.Y.S.2d 281,19 A.D.3d 804,2005 NY Slip Op 05121 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DANIEL E. BOYER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
CREW III, J.
In 1994, defendant was indicted and charged with, inter alia, burglary in the second degree based upon events committed in Rensselaer County. Defendant pleaded guilty to burglary in the second degree in consideration of a sentence of 5½ to 11 years as a second felony offender. At the time of the plea, defendant previously had been convicted in 1984 of a class E nonviolent felony and in 1989 of a class D violent felony. The People thereafter filed a predicate felony offender statement citing defendant's 1984 prior nonviolent felony conviction, and defendant was sentenced, as a second felony offender, to 5½ to 11 years imprisonment. Defendant appealed that conviction and we affirmed (237 AD2d 743 [1997], lv denied 90 NY2d 855 [1997]).
Having served his sentence for his 1994 burglary conviction, defendant thereafter was indicted in 2001 in Albany County and charged with, inter alia, attempted burglary in the second degree. Defendant subsequently pleaded guilty to attempted burglary in the second degree in consideration of a sentence of 12 years to life imprisonment as a persistent violent felony offender based upon his prior violent felony convictions in 1989 and 1994. At the time of his sentencing in Albany County, it appears that defendant wished to challenge one of the predicate violent felony convictions forming the basis for his being treated as a persistent violent felony offender. However, when questioned in that regard, neither defendant nor his attorney articulated a challenge as to any allegation in the persistent violent felony statement and, accordingly, defendant was sentenced to an indeterminate term of imprisonment of 12 years to life in accordance with the plea agreement.
Subsequent to sentencing in Albany County, defendant moved pursuant to CPL 440.20 (1) to vacate the sentence imposed upon his 1994 Rensselaer County conviction on the ground that it was illegal. County Court...
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