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The PEOPLE of the State of New York, Respondent, v. Daniel BOYER, Appellant.

Decided: January 26, 2012

Before: MERCURE, ACTING P.J., LAHTINEN, SPAIN, MALONE JR. and KAVANAGH, JJ. Ralph Cherchian, Albany, for appellant, and appellant pro se. P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Appeals (1) from a judgment of the County Court of Albany County (Breslin, J.), rendered February 18, 2009, convicting defendant upon his plea of guilty of the crime of attempted burglary in the second degree, and (2) by permission, from an order of said court, entered January 22, 2010, which denied defendant's motion pursuant to CPL 440.20 to set aside his sentence, without a hearing.

In 2008, defendant was charged by indictment with burglary in the second degree and grand larceny in the fourth degree. He pleaded guilty to attempted burglary, waiving his right to appeal. He was sentenced, as a persistent violent felony offender, to 131/212 years to life in prison. Defendant now appeals from the judgment of conviction, arguing that the guilty plea was not knowing, voluntary and intelligent because County Court failed to advise him that the sentence imposed would run consecutively to his prior undischarged prison term. Although this contention survives his waiver of the right to appeal, defendant's failure to move to withdraw his plea or vacate the judgment of conviction renders the issue unpreserved for appellate review (see People v. Watts, 78 AD3d 1593, 1593 [2010], lv denied 16 NY3d 838 [2011]; People v. Lagas, 76 AD3d 384, 386–387 [2010], lvs denied 16 NY3d 741, 744, 860 [2011], cert denied ––– U.S. ––––, 132 S Ct 156 [2011] ), and this case does not fall within the narrow exception to the preservation requirement (see People v. Lopez, 71 N.Y.2d 662, 666 [1988] ). Penal Law § 70.25(2–a) requires that defendant's sentence on the instant conviction run consecutively to his undischarged term, and defendant was given no reason to believe “that part or all of [the] sentence would be effectively nullified, by running simultaneously with [the] sentence[ ] he had already received” (People ex rel. Gill v. Greene, 12 NY3d 1, 6 [2009], cert denied ––– U.S. ––––, 130 S Ct 86 [2009]; accord People v. Watts, 78 AD3d at 1593; People v. Lagas, 76 AD3d at 387).

Defendant also appeals, by permission, from County Court's denial of his CPL 440.20 motion to vacate his sentence and be resentenced as a second violent felony offender. Specifically, defendant argues that he is entitled to such relief because one of the prior felony convictions supporting his adjudication as a persistent violent felony offender was later determined to be subject to resentencing based upon the court's failure to pronounce the term of postrelease supervision (see People v. Sparber, 10 NY3d 457, 472 [2008] ). Because resentencing in that case did not occur until after defendant committed the crime in the present case (see People v. Boyer, ––– AD3d –––– [decided herewith] ), defendant contends that the prior conviction cannot be considered a predicate felony conviction for purposes of sentencing in this case (see Penal Law § 70.04[1][b][ii] ). We disagree.

In People v. Acevedo (17 NY3d 297 [2011] ), the Court of Appeals held that defendants will not be permitted, “by means of [seeking] vacatur and resentence” on prior convictions in which the court failed to impose required postrelease supervision, “to render their prior convictions useless as predicates to enhance punishment for the crimes they subsequently committed” (id. at 303). The Court explained that “[r]esentence is not a device appropriately employed [by a defendant] simply to alter a sentencing date and thereby affect the utility of a conviction as a predicate for the imposition of enhanced punishment” (id.). The Court expressly left open the question of “what effect a bona fide Sparber resentence”—i.e., one in which the Department of Corrections and Community Supervision, rather than a defendant, seeks resentencing pursuant to Correction Law § 601–d and Penal Law § 70.85—“should have for predicate felony purposes” (id.; but see People v. Butler, 88 AD3d 470, 473 [2011] [concluding that the Court “implicitly rejected” the position of the concurring judges, who would have held that predicate felony status is not affected by any postrelease resentencing] ).

Here, the Department of Corrections and Community Supervision sought resentencing on defendant's prior conviction and, thus, this case presents the question that was explicitly left open in Acevedo. In our view, the rationale set forth by the concurrence in Acevedo is persuasive. As the concurring judges noted, the Court of Appeals has recently indicated that “when a defendant is resentenced based upon a Sparber error, the underlying conviction remains as does that part of the sentence imposing incarceration because, under Sparber and its progeny, the purpose of the resentence is simply to provide a process to correct a ‘procedural error,’ ‘akin to a misstatement or clerical error’ “ (People v. Acevedo, 17 NY3d at 304 [Pigott, J., concurring], quoting People v. Sparber, 10 NY3d 457, 472 [2008]; see People v. Lingle, 16 NY3d 621, 635 [2011] ). Therefore, as in Acevedo, the original sentencing date on the prior conviction—as opposed to the resentencing date—controls in determining whether the prior conviction may be considered as a predicate in sentencing for subsequent crimes, and defendant's CPL 440.20 motion was properly denied.

ORDERED that the judgment and order are affirmed.

MERCURE, Acting P.J.


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