People v Jimenez

People v Jimenez 2015 NY Slip Op 07914 Decided on October 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 October 29, 2015
Gonzalez, P.J., Friedman, Gische, Kapnick, JJ.
2474/10 16017 16016

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

v

Jose Jimenez, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Lisa A. Packard of counsel), for appellant.

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

Judgment of resentence, Supreme Court, New York County (Charles H. Solomon, J.), rendered December 12, 2014, resentencing defendant, as a second violent felony offender, to a term of seven years, unanimously reversed, on the law, the second violent felony offender adjudication vacated, and the matter remanded for resentencing including a new determination as to defendant's predicate felony status. Appeal from judgment (same court and Justice), rendered December 19, 2011, as amended February 22, 2012 and December 12, 2014, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, unanimously dismissed, as subsumed in the appeal from the judgment of resentence.

Defendant made a CPL 440.20 motion to set aside his sentence of 12 years to life as a persistent violent felony offender on the grounds that his 2000 conviction could not be used as a predicate conviction because it was unconstitutionally obtained within the meaning of CPL 700.15(7)(b), and that counsel was ineffective in failing to raise that issue at the appropriate time. In response, the People did not dispute these claims, and conceded that defendant did not qualify as a persistent violent felony offender. The court granted the motion, but resentenced defendant as a second violent felony offender, without considering whether defendant's 1993 conviction [*2]fell within or without the 10-year time bar for predicate felonies. In addition, this does not preclude the People from relying on other convictions, if any. Accordingly, defendant must be resentenced.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 29, 2015

CLERK