People v. Cox , 2018 NY Slip Op 379 ( 2018 )

People v Cox (2018 NY Slip Op 00379)

People v Cox

2018 NY Slip Op 00379

Decided on January 23, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 23, 2018
Acosta, P.J., Manzanet-Daniels, Gische, Kapnick, Kahn, JJ.

2944/11 4857 4856

[*1]The People of the State of New York, Appellant,

v

Jamal Cox, Defendant-Respondent.

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

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

Appeal from judgment of resentence, Supreme Court, New York County (Richard D. Carruthers, J.), rendered September 8, 2015, resentencing defendant, as a second violent felony offender, to a term of 10 years, and bringing up for review an order (same court and Justice), entered on or about September 10, 2014, which granted defendant's CPL 440.20 motion to set aside his sentence as a persistent violent felony offender and directed that he be resentenced as a second violent felony offender, held in abeyance, and the matter remitted for a determination of the additional issue raised in defendant's motion.

The court granted defendant's motion on a ground later rejected by the Court of Appeals (see People v Smith, 28 NY3d 191 [2016]). The parties agree that the appeal should be held in abeyance for a determination of the remaining issue raised in the motion but not reached by the motion court (see e.g. People v Simmons, 151 AD3d 628 [1st Dept 2017]), specifically, whether defendant's 2003 Queens County conviction was unconstitutionally obtained because defendant was never informed during the plea proceeding in that case of the term of his incarceratory sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 23, 2018

CLERK