People v London
2021 NY Slip Op 04283 [196 AD3d 431]
Appellate Division, First Department
July 8, 2021
196 AD3d 431
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 1, 2021
Janet E. Sabel, The Legal Aid Society, New York (Simon Greenberg of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.
Judgment, Supreme Court, New York County (Melissa C. Jackson, J.), rendered February 23, 2017, convicting defendant, upon his plea of guilty, of two counts of assault in the second degree, and sentencing him, as a second violent felony offender, to concurrent terms of five years, unanimously modified, on the law, to the extent of vacating the second violent felony offender adjudication and remanding for resentencing in accordance with this decision, and otherwise affirmed.
The People concede that defendant‘s Colorado burglary conviction could not serve as the basis for adjudicating defendant a second violent felony offender. Accordingly, we remand for resentencing. On remand, the People may allege a different prior felony conviction, if there is one, as the basis for a predicate felony adjudication. However, their suggestion that submission of additional documents might still result in the 2009 Colorado burglary conviction qualifying as a predicate felony is unavailing. Concur—Manzanet-Daniels, J.P., Webber, Singh, Kennedy, JJ.