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People v. Hymes

Appellate Division of the Supreme Court of New York, First Department
Sep 22, 2005
21 A.D.3d 823 (N.Y. App. Div. 2005)

Summary

In Hymes, supra, the court could not determine whether the defendant's predicate conviction for Attempted Criminal Possession of a Weapon in the Third Degree qualified as a violent felony conviction because Penal Law §70.02(1)(d) expressly limited class "E" violent felony offenses to only certain subdivisions of Penal Law §265.03.

Summary of this case from People v. Alexander

Opinion

6536.

September 22, 2005.

Judgment, Supreme Court, Bronx County (Frank Torres, J.), rendered February 13, 1997, convicting defendant, upon his plea of guilty, of attempted robbery in the first degree and two counts of robbery in the second degree and sentencing him, as a persistent violent felony offender, to concurrent terms of nine years to life, unanimously modified, on the law, to the extent of vacating the persistent violent felony offender adjudication and sentence, and remanding for further sentencing proceedings in accordance with CPL article 400, and otherwise affirmed.

Laura R. Johnson, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Alexis Pimentel of counsel), for respondent.

Before: Sullivan, J.P., Ellerin, Nardelli and Sweeny, JJ.


The record establishes that defendant was adjudicated as a persistent violent felony offender and that he received a sentence that would only be lawful upon such an adjudication. However, by failing to specify the subdivision of Penal Law § 265.02 applicable to defendant's prior conviction of attempted criminal possession of a weapon, the People's information failed to establish that this conviction qualified as a violent felony ( see Penal Law § 70.02 [d]).


Summaries of

People v. Hymes

Appellate Division of the Supreme Court of New York, First Department
Sep 22, 2005
21 A.D.3d 823 (N.Y. App. Div. 2005)

In Hymes, supra, the court could not determine whether the defendant's predicate conviction for Attempted Criminal Possession of a Weapon in the Third Degree qualified as a violent felony conviction because Penal Law §70.02(1)(d) expressly limited class "E" violent felony offenses to only certain subdivisions of Penal Law §265.03.

Summary of this case from People v. Alexander
Case details for

People v. Hymes

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN HYMES, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Sep 22, 2005

Citations

21 A.D.3d 823 (N.Y. App. Div. 2005)
2005 N.Y. Slip Op. 6854
800 N.Y.S.2d 843

Citing Cases

People v. Alexander

The defendant did not do so. The defendant next contends, citing People v. Hymes, 21 A.D.3d 823 (1st Dept.…