People v. Foust

278 A.D.2d 242, 717 N.Y.S.2d 902, 2000 N.Y. App. Div. LEXIS 12566

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 2000
• Status: Published

Opinion

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Jones, J.), imposed December 23, 1997, upon his convictions of manslaughter in the first degree, attempted murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree.

Ordered that the resentence is affirmed.

Upon granting the defendant’s motion pursuant to CPL 440.20 to vacate his sentence, the Supreme Court set aside his sentence as a second violent felony offender and resentenced him, as a second felony offender, to the same term of imprisonment originally imposed. The defendant contends that this was improper and that the matter should be remitted for further resentencing.

The record demonstrates that the error of the original sentencing court (Egitto, J.), concerning the defendant’s predicate status did not influence the determination on the resentence. Therefore, further resentencing is not required (see, People v Capers, 177 AD2d 992; People v Stone, 150 AD2d 815; cf., People v Parks, 186 AD2d 416; People v Smith, 129 AD2d 517). The resentence imposed under either predicate status was proper. Sullivan, J. P., S. Miller, Altman and Friedmann, JJ., concur.