The People of the State of New York, Appellant, v. Jamal Cox, Defendant–Respondent. (2018)

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Appeal from judgment of resentence, Supreme Court, New York County (Richard D. Carruthers, J.), rendered September 8, 2015, resentencing defendant, as a second violent felony offender, to a term of 10 years, and bringing up for review an order (same court and Justice), entered on or about September 10, 2014, which granted defendant's CPL 440.20 motion to set aside his sentence as a persistent violent felony offender and directed that he be resentenced as a second violent felony offender, held in abeyance, and the matter remitted for a determination of the additional issue raised in defendant's motion.

The court granted defendant's motion on a ground later rejected by the Court of Appeals (see People v. Smith, 28 NY3d 191 [2016] ).  The parties agree that the appeal should be held in abeyance for a determination of the remaining issue raised in the motion but not reached by the motion court (see e. g. People v. Simmons, 151 AD3d 628 [1st Dept 2017] ), specifically, whether defendant's 2003 Queens County conviction was unconstitutionally obtained because defendant was never informed during the plea proceeding in that case of the term of his incarceratory sentence.

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CLERK