People v Wood

People v Wood 2013 NY Slip Op 08823 Decided on December 31, 2013 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 December 31, 2013
Tom, J.P., Andrias, Friedman, Freedman, Clark, JJ. 10992-
6029/02 10993

[*1]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.

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 of the 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, unanimously reversed, on the law, the motion denied, and the matter remanded for resentencing.

Pursuant to People v Boyer (__ NY3d __, 2013 Slip Op 07515 [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 NY3d 457 [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.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 31, 2013

CLERK