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

918
KA 14-00235
PRESENT: PERADOTTO, J.P., LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JUDSON WATKINS, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
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 Onondaga County Court (Joseph E. Fahey, J.), entered December 18,
2013. The order denied the motion of defendant pursuant to CPL 440.20
(1).

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law, the motion is granted, the sentence
is set aside and the matter is remitted to Onondaga County Court for
resentencing.

     Memorandum: Defendant appeals by permission of this Court
pursuant to CPL 460.15 from an order denying his motion pursuant to
CPL 440.20 (1) seeking to set aside his sentence on the ground that he
was improperly adjudicated a persistent felony offender. We agree
with defendant that County Court erred in denying the motion upon
determining that this issue was previously addressed on the merits
(see CPL 440.20 [2], [3]). Although defendant has filed four prior
CPL article 440 motions, one of which was considered by this Court on
appeal (People v Watkins, 79 AD3d 1648, lv denied 16 NY3d 800), the
precise issue raised herein was not addressed by this Court on that
appeal or on defendant’s direct appeal (People v Watkins, 17 AD3d
1083, 1084, lv denied 5 NY3d 771). On the merits, we agree with
defendant that the court erred in designating him a persistent felony
offender because he had not been sentenced to a period of more than
one year on two of the three proposed predicate felonies (see Penal
Law § 70.10 [1] [b] [i]). Although the People are correct that the
prior felony convictions of robbery in the second degree (§ 160.10)
and attempted burglary in the second degree (§§ 110.00, 140.25) are
predicate violent felony offenses that satisfy the requirements to
determine that defendant is a persistent violent felony offender (see
§ 70.08 [1] [a]), the record does not establish whether those
                                 -2-                          918
                                                        KA 14-00235

convictions meet the criteria of section 70.08 (1) (b), and we
therefore decline the People’s request to modify defendant’s
designation. Thus, we reverse the order, grant the motion, vacate the
sentence and remit the matter to County Court for resentencing.




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
