People v Gould

People v Gould 2015 NY Slip Op 06957 Decided on September 29, 2015 Appellate Division, First 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 September 29, 2015
Friedman, J.P., Andrias, Saxe, Gische, Kapnick, JJ.
15700 6882/90

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

v

Bernell Gould, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Diane Princ of counsel), for respondent.

Order, Supreme Court, New York County (Edward J. McLaughlin, J.), entered on or about December 2, 2009, which denied defendant's CPL 440.20 motion to set aside a sentence and for resentencing, unanimously reversed, on the law, the motion is granted, the sentence is vacated and the matter is remanded for further proceedings.

As the People concede, defendant's 1991 sentence was invalid as a matter of law because he was incorrectly adjudicated a second felony offender rather than a second violent felony offender (see People v Scarbrough , 66 NY2d 673 [1985], revg on dissenting mem of Boomer, J. , 105 AD2d 1107, 1107-1109 [4th Dept 1984]). However, contrary to the People's argument, the error cannot be corrected in this case without a new sentencing proceeding. The existing predicate felony information sets forth a drug conviction and cannot support a second violent felony offender adjudication, which would require the filing of a new information, followed by proceedings thereon. The issue of whether resentencing in this case would affect the sequentiality of the convictions supporting defendant's 1997 persistent violent felony offender adjudication is not before us on this appeal.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: SEPTEMBER 29, 2015

CLERK