People v. Boyer

• Decision Date: 26 January 2012
• Citation: 2012 N.Y. Slip Op. 00426,91 A.D.3d 1194,936 N.Y.S.2d 917
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel BOYER, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00426
91 A.D.3d 1194
936 N.Y.S.2d 917

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

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

Jan. 26, 2012.

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

*918 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.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered November 24, 2009, which resentenced defendant following his conviction upon his plea of guilty of the crime of attempted burglary in the second degree.

In 2002, defendant pleaded guilty to attempted burglary in the second degree and was sentenced as a persistent violent felony offender based upon 1989 and 1994 violent felony convictions (19 A.D.3d 804, 805, 799 N.Y.S.2d 281 [2005], lv. denied 5 N.Y.3d 804, 803 N.Y.S.2d 33, 836 N.E.2d 1156 [2005] ). Thereafter, the sentence imposed upon defendant's 1994 conviction was vacated ( id.). As a consequence, defendant was ultimately resentenced in the present matter as a second violent felony offender ( id. at 806, 799 N.Y.S.2d 281; see 36 A.D.3d 1084, 827 N.Y.S.2d 776 [2007], lv. denied 8 N.Y.3d 944, 836 N.Y.S.2d 554, 868 N.E.2d 237 [2007], lv. denied 9 N.Y.3d 863, 840 N.Y.S.2d 893, 872 N.E.2d 1199 [2007]; Boyer v. Miles, 2008 WL 2433534, 2008 U.S. Dist. LEXIS 46348 [2008] ). Defendant now appeals, contending that County Court erred in sentencing him as a second violent felony offender because no predicate felony statement was filed prior to the resentencing proceeding and he was denied the opportunity to be heard with regard to the predicate felony.

On a previous appeal, this Court adjudicated defendant to be a second violent felony offender based upon the 1989 conviction, which was set forth in the People's predicate felony statement submitted prior to sentencing in 2002 ( see 19 A.D.3d at 805–806, 799 N.Y.S.2d 281). Moreover, defendant has never challenged that predicate felony despite numerous opportunities to do so. Accordingly, we conclude that County Court properly resentenced defendant as a second violent felony offender ( see People v. Mosley, 70 A.D.3d 1126, 1127, 896 N.Y.S.2d 185 [2010], lv. denied 14 N.Y.3d 890, 903 N.Y.S.2d 779, 929 N.E.2d 1014 [2010]; People v. Booker, 280 A.D.2d 785, 785–786, 719 N.Y.S.2d 908 [2001], lv. denied 96 N.Y.2d 916, 732...