Majority
p. 1020The People of the State of New York, Respondent, v Edward Jamison, Appellant. [28 NYS3d 620]
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Kron, J.), dated April 26, 2011, which denied, without a hearing, his motion pursuant to CPL 440.20 to set aside his sentence.
Ordered that the order is reversed, on the law, the defendant’s motion pursuant to CPL 440.20 to set aside his sentence is granted, the sentence is vacated, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.
The defendant’s adjudication as a second violent felony of
p. 1021
fender was undermined when the sentence on the predicate violent felony conviction in New York County was set aside and the defendant was resentenced. That resentencing had the effect of taking the New York County conviction out of sequence for purposes of Penal Law § 70.04 (1) (b) (ii). Accordingly, the Supreme Court should have granted the defendant’s motion pursuant to CPL 440.20 to set aside his sentence (see People v Esquiled, 121 AD3d 807 , 808 [2014]; People v Robles, 251 AD2d 20 , 21 [1998]; cf. People v Boyer, 22 NY3d 15 , 24-25 [2013]).
Rivera, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.
Cases cited
- People v. Esquiled 121 AD3d 807 at 808 p. 1021
- People v. Boyer 22 NY3d 15 at 24-25 p. 1021