People v Johnson

People v Johnson 2008 NY Slip Op 09843 [57 AD3d 323] December 16, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Robert Johnson, Appellant.

—[*1] Center for Appellate Litigation, New York (Robert S. Dean of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Marc A. Sherman of counsel), for respondent.

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered June 7, 2007, convicting defendant, upon his plea of guilty, of manslaughter in the first degree and attempted murder in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of 20 years, unanimously modified, on the law, to the extent of vacating the DNA databank fee, and reducing the amounts of the mandatory surcharge and crime victim assistance fees from $250 and $20 to $150 and $5, respectively, and otherwise affirmed.

Judgment, same court, Justice and date, convicting defendant, upon his plea of guilty, of rape in the first degree, and sentencing him, as a second violent felony offender, to a concurrent term of 15 years, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and remanding for resentencing, including further proceedings on defendant's second violent felony offender status, and otherwise affirmed.

With regard to the manslaughter and attempted murder conviction under indictment No. 2227/02, as the People concede, since defendant committed these crimes prior to the effective dates of amendments to Penal Law § 60.35 providing for the imposition of DNA databank fees and increasing the mandatory surcharge and crime victim assistance fees defendant's sentence is unlawful to the extent indicated.

With regard to the rape conviction under indictment No. 4811/03, as the People concede, defendant was improperly adjudicated a second violent felony offender because the adjudication was based on a predicate conviction that did not meet the sequentiality requirement of Penal Law § 70.04 (1) (b) (ii). However, under the circumstances, the People are entitled to an opportunity to establish, on the basis of a different conviction, that defendant is nonetheless a second violent felony offender (see People v Sailor, 65 NY2d 224 [1985], cert denied 474 US 982 [1985]). Since there is to be a resentencing on this indictment in any case, the sentencing court should take note that because the crime was committed on [*2]February 20, 1996, defendant is not subject to any period of postrelease supervision, and is subject to the fee and surcharge schedule applicable as of that date. Concur—Andrias, J.P., Nardelli, Sweeny, DeGrasse and Freedman, JJ.