Opinion
2014-04-22
The PEOPLE of the State of New York, Appellant, v. Frank RUIZ, also known as Hector Cortez, Defendant–Respondent.
Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of counsel), for respondent.
Judgment of resentence, Supreme Court, Bronx County (William I. Mogulescu, J.), rendered April 26, 2012, resentencing defendant to concurrent terms of 8 1/2 years, and bringing up for review an order of the same court and Justice, entered on or about February 23, 2012, which granted defendant's CPL 440.20 motion to set aside his the sentences as a second violent felony offender and directed that he be resentenced as a first violent felony offender, unanimously reversed, on the law, the judgment of resentence vacated, and the original sentence, rendered May 22, 2007, reinstated.
In view of the Court of Appeals' recent decision in People v. Boyer, 22 N.Y.3d 15, 977 N.Y.S.2d 731, 999 N.E.2d 1176 (2013), defendant was not entitled to relief under 440.20 from his original sentencing as a second violent felony offender.
The Decision and Order of this Court entered herein on January 28, 2014 is hereby recalled and vacated ( seeM–590, 2014 WL 1584121 decided simultaneously herewith).
GONZALEZ, P.J., FRIEDMAN, MOSKOWITZ, FEINMAN, JJ., concur.