PEOPLE v. DAVIS (2025)

Order, Supreme Court, New York County (Daniel P. Conviser, J.), entered on or about February 6, 2020, which denied defendant's CPL 440.20 motion to set aside his sentence, unanimously affirmed.

The court providently exercised its discretion in summarily denying defendant's CPL 440.20 motion, as the moving papers did not allege any basis to set aside defendant's sentence (see CPL 440.30[4][a]).  Although the sentencing court initially lacked the authority to impose interim probation in 1983 (see People v. Rodney E., 77 N.Y.2d 672, 674, 676, 569 N.Y.S.2d 920, 572 N.E.2d 603 [1991]), defendant successfully completed that term and, at sentencing, the court lawfully sentenced him to five years of probation, in accordance with the court's promise during the plea proceedings.  Over a year later, while defendant was serving this authorized term of probation, a jury found defendant guilty of rape in the first degree (see People v. Davis, 127 A.D.2d 490, 511 N.Y.S.2d 542 [1st Dept. 1987], lv denied 70 N.Y.2d 703, 519 N.Y.S.2d 1038, 513 N.E.2d 715 [1987]).  As a result, in May of 1985, the court properly revoked his probationary sentence and sentenced him to a lawful prison term of 21/313 to 7 years (see Penal Law § 65.00[2]).  Thus, defendant's sentence of incarceration resulted from a violation of his lawful term of probation and was not improperly based on any “violation of conditions the court was not authorized to impose” (People v. Avery, 85 N.Y.2d 503, 506, 626 N.Y.S.2d 726, 650 N.E.2d 384 [1995];  see also Rodney E., 77 N.Y.2d at 676, 569 N.Y.S.2d 920, 572 N.E.2d 603;  People v. Vega, 105 A.D.3d 582, 583, 964 N.Y.S.2d 36 [1st Dept. 2013], lv denied 21 N.Y.3d 1077, 974 N.Y.S.2d 327, 997 N.E.2d 152 [2013]).