PEOPLE v. GOMEZ (2025)

Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered February 17, 2015, convicting defendant, upon his plea of guilty, of three counts of robbery in the first degree and one count of robbery in the third degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 20 years to life, unanimously affirmed.

After defendant was sentenced as a second violent felony offender for his second violent felony conviction, he was resentenced for his first violent felony conviction to correct an erroneous imposition of postrelease supervision.  He then successfully sought resentencing as a first-time violent felony offender for his second conviction under (People v. Butler, 88 A.D.3d 470, 931 N.Y.S.2d 277 [1st Dept. 2011], abrogated by People v. Boyer, 22 N.Y.3d 15, 977 N.Y.S.2d 731, 999 N.E.2d 1176 [2013]).  After his third violent felony conviction, the instant conviction, the court initially sentenced him as a second violent felony offender, applying Butler.  However, after the Court of Appeals decided People v. Boyer, which held that “the date of sentence for a defendant's prior conviction is the original date on which the defendant received a lawful prison term upon a valid conviction for that prior crime, regardless of whether the defendant or the government seeks resentencing on that conviction to correct” a flawed imposition of postrelease supervision (22 N.Y.3d 15, 19, 977 N.Y.S.2d 731, 999 N.E.2d 1176 [2013]), the court granted the People's CPL 440.40 motion to set aside defendant's third sentence.  After defendant replead to the crimes, the court sentenced him as a persistent violent felony offender.

“[S]ince defendant stood convicted of a violent felony,” at his most recent resentencing, “had been previously convicted of two violent felony offenses in that he had committed the second violent felony offense after he had been sentenced for his first one, and had committed his third violent felony offense after he had been sentenced for the first two, he was properly sentenced as a persistent violent felony offender” (People v. Carr, 244 A.D.2d 264, 264, 664 N.Y.S.2d 766 [1st Dept. 1997], lv denied 91 N.Y.2d 889, 669 N.Y.S.2d 4, 691 N.E.2d 1030 [1998]).

Contrary to defendant's contention, the fact that he was resentenced as a first-time violent felony offender for his second conviction does not disrupt the sequentiality required for persistent violent felony offender sentencing.  As this Court has held, “neither People v. Morse, 62 N.Y.2d 205, 476 N.Y.S.2d 505, 465 N.E.2d 12 [1984] nor Penal Law § 70.08 require[s] that a defendant be adjudicated a second violent felony offender in order to be sentenced as a persistent violent felony offender for his third violent felony conviction” (People v. Carr, 244 A.D.2d at 264, 664 N.Y.S.2d 766).