People v. Boyer

• Citation: 940 N.Y.S.2d 677,91 A.D.3d 1183,2012 N.Y. Slip Op. 00422
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel BOYER, Appellant.
• Decision Date: 26 January 2012
• Court: New York Supreme Court Appellate Division

2012 N.Y. Slip Op. 00422
91 A.D.3d 1183
940 N.Y.S.2d 677

The PEOPLE of the State of New York, Respondent,
v.
Daniel BOYER, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 26, 2012.

[940 N.Y.S.2d 677]

Ralph Cherchian, Albany, for appellant, and appellant pro se.

P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Before: MERCURE, Acting P.J., LAHTINEN, SPAIN, MALONE JR. and KAVANAGH, JJ.

MERCURE, Acting P.J.

[91 A.D.3d 1184] Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.), rendered February 18, 2009, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree, and (2) by permission, from an order of said court, entered January 22, 2010, which denied defendant's motion pursuant to CPL 440.20 to set aside his sentence, without a hearing.

In 2008, defendant was charged by indictment with burglary in the second degree and grand larceny in the fourth degree. He pleaded guilty to attempted burglary, waiving his right to appeal. He was sentenced, as a persistent violent felony offender, to 13 1/2 years to life in prison. Defendant now appeals from the judgment of conviction, arguing that the guilty plea was not knowing, voluntary and intelligent because County Court failed to advise him that the sentence imposed would run consecutively to his prior undischarged prison

[940 N.Y.S.2d 678]

term. Penal Law § 70.25(2–a) requires that defendant's sentence on the instant conviction run consecutively to his undischarged term, and defendant was given no reason to believe “that part or all of [the] sentence would be effectively nullified, by running simultaneously with [the] sentence[ ] he had already received” ( People ex rel. Gill v. Greene, 12 N.Y.3d 1, 6, 875 N.Y.S.2d 826, 903 N.E.2d 1146 [2009], cert. denied ––– U.S. ––––, 130 S.Ct. 86, 175 L.Ed.2d 59 [2009]; accord People v. Watts, 78 A.D.3d at 1593, 910 N.Y.S.2d 730; People v. Lagas, 76 A.D.3d at 387, 906 N.Y.S.2d 151).

Defendant also appeals, by permission, from County Court's denial of his CPL 440.20 motion to vacate his sentence and be resentenced as a second violent felony offender. Specifically, defendant argues that he is entitled to such relief because one of the prior felony convictions supporting his adjudication as a persistent violent felony offender was later determined to be subject to resentencing based upon the court's failure to pronounce the term of postrelease supervision ( see People v. Sparber, 10 N.Y.3d 457, 472, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] ). Because resentencing in that case did not occur until after defendant committed the crime in the present case ( see People v. Boyer, 91 A.D.3d 1194, 936 N.Y.S.2d 917 [decided herewith] ), defendant contends that the prior conviction cannot be considered a predicate felony conviction for purposes of sentencing in this case ( see Penal...