People v Thomas

People v Thomas 2014 NY Slip Op 07956 Decided on November 18, 2014 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 November 18, 2014
Friedman, J.P., Acosta, Saxe, Manzanet-Daniels, Gische, JJ.
13524 2945/10

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

v

Corey L. Thomas, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Marianne Stracquadanio of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered May 31, 2013, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.

The sentencing court properly adjudicated defendant a second violent felony offender. Defendant's predicate felony, criminal possession of a weapon in the third degree pursuant to former Penal Law § 265.02(4), was a violent felony at the time of that conviction in 2000 (see People v Walker, 81 NY2d 661, 664-666 [1993]). Moreover, the same crime has been recodified as the more serious offense of criminal possession of a weapon in the second degree (Penal Law § 265.03[3]; see People v Jones, 22 NY3d 53, 58 [2013]), which "remained a violent felony offense at the time of defendant's second violent felony offender adjudication" (People v Bowens, __AD3d__, 2014 NY Slip Op 06536, *1 [1st Dept 2014]; see also People v Morse, 62 NY2d 205, 217 [1984]; see also Penal Law § 70.02[1][b]). Defendant's ex post facto argument is improperly raised for the first time in his reply brief, and is without merit in any event.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 18, 2014

CLERK