Opinion
518 KA 20-00984
06-11-2021
The PEOPLE of the State of New York, Respondent, v. Ronald NELSON, Defendant-Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LISA GRAY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the resentence so appealed from is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence of imprisonment imposed to a determinate term of 12 years, and as modified the resentence is affirmed.
Memorandum: Defendant was convicted following a jury verdict of gang assault in the first degree ( Penal Law § 120.07 ). On a prior appeal, we, inter alia, reduced the conviction to gang assault in the second degree under a theory of accomplice liability (§§ 20.00, 120.06), vacated the sentence, and remitted the matter to Supreme Court for resentencing ( People v. Nelson , 178 A.D.3d 1395, 1397, 116 N.Y.S.3d 826 [4th Dept. 2019], lv denied 35 N.Y.3d 972, 125 N.Y.S.3d 8, 148 N.E.3d 472 [2020] ). Defendant now appeals from the resentence.
Although defendant contends that his conviction should be further reduced to assault in the third degree, a defendant who appeals from a resentence only may not challenge the underlying judgment of conviction (see People v. Smith , 21 A.D.3d 1360, 1360, 801 N.Y.S.2d 218 [4th Dept. 2005], lv denied 5 N.Y.3d 885, 808 N.Y.S.2d 588, 842 N.E.2d 486 [2005] ; see generally CPL 450.30 [3] ; People v. Jordan , 16 N.Y.3d 845, 846, 922 N.Y.S.2d 262, 947 N.E.2d 153 [2011] ; People v. Ramos , 105 A.D.3d 684, 685, 963 N.Y.S.2d 658 [1st Dept. 2013], lv denied 21 N.Y.3d 1045, 972 N.Y.S.2d 542, 995 N.E.2d 858 [2013] ).
Finally, defendant contends that his resentence is unduly harsh and severe because it is the same as the sentence that was originally imposed on the count of gang assault in the first degree, which was later reduced. We agree with defendant that the sentence should be modified to reflect the reduction of his conviction from gang assault in the first degree, a class B felony, to gang assault in the second degree, a class C felony. We therefore modify the judgment as a matter of discretion in the interest of justice by reducing the sentence of imprisonment imposed to a determinate term of 12 years, to be followed by the five-year period of postrelease supervision previously imposed by the court (see CPL 470.15 [6] [b] ).