Opinion
10352 Ind. 3112/13
11-19-2019
The PEOPLE of the State of New York, Respondent, v. Fidel VEGA, Defendant–Appellant.
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.
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 is unavailing. Such a challenge would be untimely because defendant failed to raise it at the time of his predicate felony adjudication (see CPL 400.15[7][b] ; People v. Lara , 167 A.D.3d at 448, 89 N.Y.S.3d 154 ; People v. Odom , 63 A.D.3d 408, 409, 880 N.Y.S.2d 58 [1st Dept. 2009], lv denied 13 N.Y.3d 798, 887 N.Y.S.2d 548, 916 N.E.2d 443 [2009] ).
Because of the procedural posture of the sentencing issue on defendant's prior appeal ( 155 A.D.3d 462, 65 N.Y.S.3d 7 [1st Dept. 2017], affd 33 N.Y.3d 1002, 102 N.Y.S.3d 140, 125 N.E.3d 805 [2019] ), this Court has not yet had occasion to review the original 2014 sentence for excessiveness. We now decline to reduce it in the interest of justice.