People v. Thomas

Nov 18, 2014
13524 2945/10
Versions:122 A.D.3d 489
995 N.Y.S.2d 508

Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered May 31, 2013, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously affirmed.

The sentencing court properly adjudicated defendant a second violent felony offender. Defendant‘s predicate felony, criminal possession of a weapon in the third degree pursuant to former Penal Law § 265.02 (4), was a violent felony at the time of that conviction in 2000 (see People v Walker, 81 NY2d 661, 664-666 [1993]). Moreover, the same crime has been recodified as the more serious offense of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]; see People v Jones, 22 NY3d 53, 58 [2013]), which “remained a violent felony [offense] at the time of defendant‘s second violent felony offender adjudication” (People v Bowens, 120 AD3d 1148, 1149 [1st Dept 2014]; see also People v Morse, 62 NY2d 205, 217 [1984]; Penal Law § 70.02 [1] [b]). Defendant‘s ex post facto argument is improperly raised for the first time in his reply brief, and is without merit in any event. Concur—Friedman, J.P., Acosta, Saxe, Manzanet-Daniels and Gische, JJ.