Opinion
2014-03-27
The PEOPLE of the State of New York, Appellant, v. Terrance WOOD, etc., Defendant–Respondent.
Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), for appellant. Richard M. Greenberg, Office of the Appellate Defender, New York (Avi Springer of counsel), for respondent.
Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), for appellant. Richard M. Greenberg, Office of the Appellate Defender, New York (Avi Springer of counsel), for respondent.
Judgment of resentence, Supreme Court, Bronx County (Michael A. Gross, J.), rendered September 28, 2012, resentencing defendant to a term of 13 years plus 5 years' postrelease supervision, and bringing up for review an order, same court and Justice, entered on or about June 1, 2012, which granted defendant's CPL 440.20 motion to set aside his sentence as a second violent felony offender and directed that he be resentenced as a first violent felony offender, and an order, entered on or about July 23, 2012, which, upon reargument, adhered to the June 1, 2012 order, same court and Justice, unanimously reversed, on the law, the motion denied, and the sentence imposed on October 4, 2004 reinstated.
Pursuant to People v. Boyer, 22 N.Y.3d 15, 977 N.Y.S.2d 731, 999 N.E.2d 1176 (2013), the original date of a conviction is controlling for purposes of determining the sequence of current and prior convictions, not the date of resentencing to correct the error identified in People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 (2008). Because the date defendant received a lawful sentence on a valid conviction for criminal possession of a weapon in the third degree precedes the date of conviction for the instant offense, it qualifies as a prior felony conviction.
The decision and order of this Court entered herein on December 31, 2013 (112 A.D.3d 549, 976 N.Y.S.2d 879 [1st Dept.2013] ) is hereby recalled and vacated ( seeM—63, 2014 WL 1242942 decided simultaneously herewith).
TOM, J.P., FRIEDMAN, ANDRIAS, FREEDMAN, CLARK, JJ., concur.