People v. Belton

120 A.D.3d 826, 991 N.Y.S.2d 375, 2014 NY Slip Op 05995, 2014 N.Y. App. Div. LEXIS 5921

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 27, 2014
• Docket: 2013-08620
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J), rendered August 16, 2013, convicting him of attempted robbery in the second degree, upon his plea of guilty, and sentencing him, as a persistent violent felony offender, to an indeterminate term of imprisonment of 15 years to life.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Orange County, for resentencing in accordance herewith.

The parties agree on the chronology concerning the defendant’s commission of, and sentencing for, the relevant crimes underlying his adjudication as a persistent violent felony offender. Based on this undisputed chronology, as the People correctly concede, the defendant was improperly adjudicated a persistent violent felony offender (see People v Morse, 62 NY2d 205 [1984]; People v Rivera, 97 AD3d 704, 704 [2012]; People v Davis, 43 AD3d 448, 449 [2007]; People v Cooper, 245 AD2d 569, 569 [1997]; People v Barclay, 201 AD2d 739, 739-740 [1994]). Accordingly, we modify the judgment by vacating the sentence imposed, and remit the matter to the County Court, Orange County, for resentencing.

Skelos, J.P., Dickerson, Austin and Duffy, JJ., concur.