        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

233
KA 12-00585
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JIMMY VELASQUEZ, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

JIMMY VELASQUEZ, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), entered
February 1, 2012. The order denied defendant’s motion pursuant to CPL
440.20 to set aside his sentence.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: In this postconviction proceeding, defendant appeals
from an order denying his motion to set aside his sentence pursuant to
CPL 440.20. The challenged sentence was imposed in 2007, after
defendant pleaded guilty to attempted burglary in the second degree.
On that offense, Supreme Court sentenced defendant as a persistent
violent felony offender to an indeterminate term of imprisonment of 12
years to life. One of the two predicate offenses was entered in 1999.
In 2010, pursuant to Penal Law § 70.85, defendant was resentenced on
that predicate offense because his initial sentence did not include a
term of postrelease supervision. In the instant motion, defendant
asserted that, because the sentence on the 1999 judgment was vacated
in 2010, it could not serve as a predicate offense in 2007 for the
determination that he was a persistent violent felony offender.
Supreme Court denied the motion, and we now affirm.

     After we granted defendant leave to appeal herein, the Court of
Appeals expressly stated that “a resentencing to correct the flawed
imposition of PRS does not vacate the original sentence and replace it
with an entirely new sentence, but instead merely corrects a clerical
error and leaves the original sentence, along with the date of that
sentence, undisturbed” (People v Boyer, 22 NY3d 15, 24; see People v
                                 -2-                           233
                                                         KA 12-00585

Hall, 124 AD3d 795, 796; People v Miller, 118 AD3d 1463, 1464, lv
denied 24 NY3d 1003). Because defendant was lawfully sentenced on the
predicate offense in question before he was convicted of the offense
for which he was sentenced as a persistent violent felony offender,
“it qualifies as a prior [violent] felony conviction” (People v Wood,
115 AD3d 613, 613, lv denied 22 NY3d 1204). We thus conclude that the
court properly denied defendant’s motion.

     We have reviewed defendant’s remaining contentions, including the
contention set forth in his pro se supplemental brief, and conclude
that they lack merit.




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
