People v. Vega
| Citation | 177 A.D.3d 491,110 N.Y.S.3d 550 (Mem) |
| Decision Date | 19 November 2019 |
| Docket Number | 10352,Ind. 3112/13 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Fidel VEGA, Defendant–Appellant. |
| Court | New York Supreme Court Appellate Division |
177 A.D.3d 491
110 N.Y.S.3d 550 (Mem)
The PEOPLE of the State of New York, Respondent,
v.
Fidel VEGA, Defendant–Appellant.
10352
Ind. 3112/13
Supreme Court, Appellate Division, First Department, New York.
ENTERED: NOVEMBER 19, 2019
Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.
Manzanet–Daniels, J.P., Tom, Kapnick, Gesmer, Singh, JJ.
Judgment of resentence, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered January 12, 2018, resentencing defendant, as a second violent felony offender, to an aggregate term of 11 years, unanimously affirmed.
The court was not required to conduct a plenary sentencing proceeding when, upon granting the People's CPL 440.40 motion, the court reinstated defendant's original 2014 sentence, which had been set aside in 2016 on grounds later invalidated by the Court of Appeals in People v. Smith , 28 N.Y.3d 191, 43 N.Y.S.3d 771, 66 N.E.3d 641 (2016). The court had no authority to revisit its original exercise of sentencing discretion, because the original sentence was in accordance with law, defendant had begun serving it, and the court had no discretion to do anything but reimpose it (see People v. Williams , 14 N.Y.3d 198, 212, 899 N.Y.S.2d 76, 925 N.E.2d 878 [2010], cert denied 562 U.S. 947, 131 S.Ct. 125, 178 L.Ed.2d 242 [2010] ;
People v. Lara , 167 A.D.3d 446, 89 N.Y.S.3d 154 [1st Dept. 2018], lv denied 32 N.Y.3d 1206, 99 N.Y.S.3d 216, 122 N.E.3d 1129 [2019] ).
To the extent defendant is claiming that he is entitled, at a plenary resentencing proceeding, to challenge the constitutionality
of his predicate felony conviction on a ground not necessarily foreclosed by the Smith decision, that claim...
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