Opinion
2013-04-18
The PEOPLE of the State of New York, Respondent, v. Raymond VEGA, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Richard Joselson of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Richard Joselson of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi–Levi of counsel), for respondent.
ANDRIAS, J.P., ACOSTA, FREEDMAN, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about September 7, 2010, which denied defendant's CPL 440.46 motion for resentencing, unanimously affirmed.
The motion court properly found that defendant's 1988 adjudication as a second violent felony offender rendered him ineligible for resentencing on his drug conviction ( seeCPL 440.46[5][b] ). Defendant asserts that this adjudication should not render him ineligible, because his sentence on his underlying 1983 violent felony conviction was allegedly unlawful under People v. Rodney E., 77 N.Y.2d 672, 569 N.Y.S.2d 920, 572 N.E.2d 603 [1991], which invalidated certain sentences that followed unauthorized periods of interim probation. That argument is without merit, for each of the reasons stated by the motion court: (1) defendant is procedurally barred from challenging his adjudication as a second violent felony offender ( seeCPL 400.15[8] ); (2) the record is unclear whether defendant was actually placed on interim probation in connection with his 1983 conviction; (3) even assuming that to be the case, the record does not establish that defendant's 1983 sentence was unlawfully enhanced on the basis of his behavior while on interim probation ( see People v. Avery, 85 N.Y.2d 503, 506, 626 N.Y.S.2d 726, 650 N.E.2d 384 [1995] ); and (4) even assuming there was a sentencing defect, that would not affect defendant's second violent felony offender status ( see People v. Ashley, 71 A.D.3d 1286, 1287, 896 N.Y.S.2d 520 [3d Dept. 2010], affd. on other grounds16 N.Y.3d 725, 917 N.Y.S.2d 91, 942 N.E.2d 300 [2011] ). We have considered and rejected defendant's arguments regarding each of these issues.