People v Caldwell, 2011 NY Slip Op 07365 [88 AD3d 560]

October 20, 2011

Appellate Division, First Department

— [*1]

Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), for appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for respondent.

Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about April 2, 2009, which granted defendant’s CPL 440.20 motion to set aside his sentence on the ground that he was improperly adjudicated a second felony drug offender whose prior felony conviction was a violent felony, unanimously reversed, on the law, and the original sentence reinstated. Appeal from order, same court and Justice, entered on or about June 3, 2010, which denied the People’s CPL 440.40 motion to set aside a judgment of resentence of the same court and Justice, rendered May 7, 2009, resentencing defendant, as a second felony drug offender in accordance with its decision and order of April 2, 2009, to a term of three years, unanimously dismissed, as academic.

Defendant is similarly situated to the defendants in People v Acevedo (17 NY3d 297 [2011]). Accordingly, his violent felony conviction qualifies as a predicate conviction for sentencing purposes in this case. Concur—Tom, J.P., Sweeny, Freedman, Richter and Abdus-Salaam, JJ..