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The PEOPLE of the State of New York, Appellant, v. Equan SANDERS, Defendant–Respondent.

Decided: October 18, 2012

GONZALEZ, P.J., SWEENY, ACOSTA, RENWICK, MANZANET–DANIELS, JJ. Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), for appellant. Steven Banks, The Legal Aid Society, New York (Elon Harpaz of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered September 14, 2010, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, affirmed.

The court properly adjudicated defendant a second violent felony offender rather than a persistent violent felony offender. Defendant's resentencing at the behest of the Division of Parole for the purpose of imposing a period of PRS on one of defendant's prior violent felony convictions occurred after he committed the instant offense. In this situation, the resentencing date controls whether the conviction meets the sequentiality requirement for sentencing as a persistent violent felony offender (see People v. Butler, 88 A.D.3d 470, 931 N.Y.S.2d 277 [1st Dept.2011], lv. denied 18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] ).

I am constrained by this court's decision in People v. Butler, 88 A.D.3d 470, 931 N.Y.S.2d 277 [1st Dept.2011], lv. denied 18 N.Y.3d 992, 945 N.Y.S.2d 647, 968 N.E.2d 1003 [2012] to affirm. I write separately to voice my concern that this issue is not fully resolved. Butler is at odds with the Second Department case of People v. Naughton, 93 A.D.3d 809, 940 N.Y.S.2d 667 [2d Dept.2012], lv. denied 19 N.Y.3d 865, 947 N.Y.S.2d 414, 970 N.E.2d 437 [2012]. Naughton clearly holds, contrary to Butler, that it is irrelevant whether the defendant or the government brought the application for a resentence under People v. Sparber, 10 N.Y.3d 457, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] and that the original sentence date is always determinative as the predicate for persistent violent felony offender status.

It is apparent from these differing opinions that the decision in People v. Acevedo, 17 N.Y.3d 297, 929 N.Y.S.2d 55, 952 N.E.2d 1047 [2011] to which both Butler and Naughton refer, did not clarify this question. We look to the Court of Appeals for guidance on this crucial sentencing issue.

All concur except GONZALEZ, P.J. and SWEENY, J. who concur in a separate memorandum by SWEENY, J. as follows: