People v. Jamison , 28 N.Y.S.3d 620 ( 2016 )

People v Jamison (2016 NY Slip Op 03013)

People v Jamison

2016 NY Slip Op 03013

Decided on April 20, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 20, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
THOMAS A. DICKERSON
SYLVIA O. HINDS-RADIX, JJ.

2011-05752
(Ind. No. 1563/98)

[*1]The People of the State of New York, respondent,

v

Edward Jamison, appellant.

Seymour W. James, Jr., New York, NY (Steven J. Miraglia of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nicoletta J. Caferri, and Jonathan K. Yi of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Kron, J.), dated April 26, 2011, which denied, without a hearing, his motion pursuant to CPL 440.20 to set aside his sentence.

ORDERED that the order is reversed, on the law, the defendant's motion pursuant to CPL 440.20 to set aside his sentence is granted, the sentence is vacated, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.

The defendant's adjudication as a second violent felony offender was undermined when the sentence on the predicate violent felony conviction in New York County was set aside and the defendant was resentenced. That resentencing had the effect of taking the New York County conviction out of sequence for purposes of Penal Law § 70.04(1)(b)(ii). Accordingly, the Supreme Court should have granted the defendant's motion pursuant to CPLR 440.20 to set aside his sentence (see People v Esquiled, 121 AD3d 807, 808; People v Robles, 251 AD2d 20, 21; cf. People v Boyer, 22 NY3d 15, 24-25).

RIVERA, J.P., BALKIN, DICKERSON and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court