People v. Boyer, No. 205, No. 206.

CourtNew York Court of Appeals
Writing for the CourtABDUS–SALAAM, J.
Citation999 N.E.2d 1176,2013 N.Y. Slip Op. 07515,977 N.Y.S.2d 731,22 N.Y.3d 15
PartiesThe PEOPLE of the State of New York, Respondent, v. Daniel BOYER, Appellant. The People of the State of New York, Appellant, v. Equan Sanders, Respondent.
Decision Date14 November 2013
Docket NumberNo. 205, No. 206.

22 N.Y.3d 15
999 N.E.2d 1176
977 N.Y.S.2d 731
2013 N.Y. Slip Op. 07515

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


The People of the State of New York, Appellant
v.
Equan Sanders, Respondent.

No. 205, No. 206.

Court of Appeals of New York.

Nov. 14, 2013.


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.

OPINION OF THE COURT

ABDUS–SALAAM, J.

999 N.E.2d 1177
22 N.Y.3d 19

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.

I

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[1] ), though a five-year PRS term was entered on the commitment order.

22 N.Y.3d 20

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 [2 ] ) in exchange for a promised indeterminate prison term of from 13 ½ 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.1 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 ).2

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 resentencing on his 2002 conviction shifted the date of sentence for the 2002 conviction to the date of resentence, such

22 N.Y.3d 21

that the sentence for his 2002 conviction was not imposed until after his commission of his current felony in 2008. Thus, defendant argued, his 2002 conviction no longer qualified as a predicate felony conviction, and the court had to vacate his persistent violent felony offender adjudication and resentence him as a second felony offender. The court denied defendant's motion to vacate his sentence. Defendant appealed.

The Appellate Division affirmed the judgment of conviction and sentence, as well as the trial court's order denying defendant's motion to vacate his sentence. The Appellate Division held that “the original sentencing date on the prior conviction—as opposed to the resentencing date—controls in determining whether the prior conviction may be considered as a predicate in sentencing for subsequent crimes, and defendant's CPL 440.20 motion was properly denied” (People v. Boyer, 91 A.D.3d 1183, 1185, 940 N.Y.S.2d 677 [3d Dept.2012] ). A Judge of this Court granted defendant leave to appeal (see 19 N.Y.3d 1024, 953 N.Y.S.2d 557, 978 N.E.2d 109 [2012] ), and we now affirm.

People v. Sanders

Before 2007, defendant Equan Sanders had two felony convictions. In 2002, defendant was sentenced to a lawful determinate prison term for his most recent prior felony conviction for attempted criminal possession of a weapon in the third degree. The sentencing court did not pronounce the mandatory PRS component of defendant's sentence. Defendant served his prison term and was released to an administratively imposed term of PRS under the supervision of the Division of Parole (DOP).

About a month later, in July 2007, defendant was arrested and indicted on two counts of criminal possession of a weapon in the second degree stemming from an incident in New York County. Defendant absconded and, about 10 months later, was

999 N.E.2d 1179
977 N.Y.S.2d 734

involuntarily returned to New York County after his arrest in another county on unrelated charges. On July 31, 2008, DOP notified the sentencing court for defendant's 2002 conviction that it was required to resentence defendant on that conviction to the extent of either eliminating his PRS term upon consent of the People or orally pronouncing a term of PRS. The court resentenced defendant on his 2002 conviction by maintaining the original prison term and striking the PRS term from his sentence with the People's consent.

About a year later, defendant and the People were engaged in plea negotiations with respect to the present crime committed

22 N.Y.3d 22

in 2007, and the parties asked the court to specify in advance whether it would sentence defendant as a second violent felony offender or a persistent violent felony offender. Defendant argued that he was a second violent felony offender because the resentencing on his 2002 conviction caused the date of sentence for that conviction to occur after his commission of the instant crime, thus disqualifying his 2002 conviction from serving as the predicate for an enhanced sentence for his current crime under Penal Law § 70.04(1)(b)(ii). The People responded that defendant was a persistent violent felony offender because the original date of sentence for his 2002 conviction preceded his commission of the instant crime. The court initially ruled that, if defendant pleaded guilty, he would be sentenced, as a persistent violent felony offender, to a prison term of 12 years to life because the original date of sentence for his 2002 conviction controlled for purposes of sentence enhancement. Defendant pleaded guilty with that understanding.

While defendant was awaiting sentencing, the Appellate Division, First Department issued its decision in People v. Acevedo, wherein the Appellate Division determined that a resentencing to correct a trial court's failure to orally pronounce PRS at the original sentencing on a prior conviction automatically resets the date of sentence for the prior conviction under the sentence enhancement statutes (see People v. Acevedo, 75 A.D.3d 255, 258–260, 901 N.Y.S.2d 239 [1st Dept.2010], revd., 17 N.Y.3d 297, 929 N.Y.S.2d 55, 952 N.E.2d 1047 [2011] ). Consequently, at sentencing in this case, the court effectively reversed its previous determination and adjudicated defendant a second violent felony offender, reasoning that, under the First Department's Acevedo decision, the resentencing on defendant's...

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