Opinion
10067 Ind. 7226/95
10-10-2019
The PEOPLE of the State of New York, Respondent, v. Henry BROWN, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Taylor L. Napolitano of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Taylor L. Napolitano of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Renwick, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Ruth Pickholz, J.), entered on or about June 11, 2018, which denied defendant's motion pursuant to CPL 440.20 to set aside a sentence imposed on March 5, 1996, unanimously affirmed.
We adhere to our determination that a defendant may not challenge a sentencing error in the defendant's favor (here, sentencing defendant as a second felony offender when he was actually a second violent felony offender), regardless of whether the challenge is made by direct appeal or CPL 440.20 motion ( People v. McNeil, 164 A.D.3d 1106, 1108, 82 N.Y.S.3d 403 [1st Dept. 2018], lv denied 32 N.Y.3d 1175, 97 N.Y.S.3d 591, 121 N.E.3d 218 [2019] ). As noted in People v. Francis, 164 A.D.3d 1108, 82 N.Y.S.3d 401 [1st Dept. 2018], People v. Gould, 131 A.D.3d 874 [1st Dept 2015] does not support a contrary result. In any event, given that the Court of Appeals has decided that resentencings do not upset the sequentiality of convictions in determining predicate felony status ( People v. Thomas, 33 N.Y.3d 1, 97 N.Y.S.3d 642, 121 N.E.3d 270 [2019] ), it is unclear how defendant would benefit from the resentencing he seeks.