State of New York                                                        OPINION
Court of Appeals                                          This opinion is uncorrected and subject to revision
                                                            before publication in the New York Reports.




 No. 5
 The People &c.,
         Appellant,
      v.
 Michael Thomas,
         Respondent.




 Jean M. Joyce, for appellant.
 Melissa S. Horlick, for respondent.




 STEIN, J.:

        The issue on this appeal is whether a resentence on a prior conviction—imposed

 after the original sentence is vacated as illegal—resets the date of sentencing for purposes

 of determining a defendant’s predicate felony status. We hold that the date on which

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                                            -2-                                       No. 5

sentence was first imposed upon a prior conviction—not the date of any subsequent

resentencings on that same conviction—is the relevant date for purposes of determining

when “[s]entence upon such prior conviction [was] imposed” (Penal Law § 70.06 [1] [b]

[ii]).

                                             -I-

         In 1989, defendant was convicted, upon his guilty plea, of attempted robbery in the

second degree and, based upon two 1988 youthful offender adjudications, was erroneously

sentenced as a second felony offender to 2 ½ to 5 years in prison (see CPL 720.35 [1];

People v Kuey, 83 NY2d 278, 283 [1994]). Later that year, defendant was convicted in

another county, also upon a plea of guilty, of attempted robbery in the first degree, and

was, again, erroneously sentenced as a second felony offender, because of the same

youthful offender adjudications, to 3 ½ to 7 years in prison. In 1993, a jury convicted

defendant of robbery in the third degree, for which he was sentenced as a second felony

offender to 3½ to 7 years in prison based upon, as relevant here, his two prior 1989

convictions.1

         In 2008 and 2011, respectively, long after he served all of the aforementioned

sentences,2 defendant moved to set aside his sentences on each of the 1989 convictions,

arguing that his status as a second felony offender in both cases was improperly premised


1
  To the extent that the 1993 sentencing court also characterized defendant’s 1988 youthful
offender adjudications as predicate felony convictions, the People have conceded that the
use of the youthful offender adjudications was error.
2
  Defendant remained in prison serving a sentence of 25 years to life imposed on a
subsequent conviction for robbery in the first degree and attempted robbery in the first
degree, on which he was sentenced as a persistent violent felon.
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                                           -3-                                       No. 5

on the use of his 1988 youthful offender adjudications, which cannot be used as convictions

for enhanced sentencing purposes. The motions to vacate the original sentences imposed

on the 1989 convictions were granted, and the courts resentenced defendant accordingly.

In both instances, the court reimposed the original indeterminate maximum prison

sentences, and modified the minimum sentences by reducing them from one-half to one-

third of the statutory maximums (see Penal Law § 70.06 [4] [b]).

       Defendant then moved to set aside the sentence on his 1993 conviction, and

requested that he be resentenced on that conviction as a first-time offender, arguing that

his 1989 convictions were no longer predicate felonies within the meaning of Penal Law §

70.06 (1) (b) (ii)—governing second felony offender status—because he was resentenced

on both after the commission of the offense underlying the 1993 conviction. Supreme

Court initially denied defendant’s motion, concluding that the original date of sentencing

controlled for predicate felony purposes. However, on defendant’s second motion to set

aside the sentence on his 1993 conviction, following the decision of the Appellate Division

in People v Esquiled (121 AD3d 807 [2d Dept 2014], lv denied 25 NY3d 1201 [2015]),

Supreme Court agreed that Esquiled required defendant to be resentenced as a first-time

offender. The People appealed, and the Appellate Division affirmed (153 AD3d 860 [2d

Dept 2017]). That Court explained that, under Esquiled, “for purposes of determining

whether a prior conviction is a predicate felony conviction, the sentence upon such prior

conviction must have been imposed before commission of the present felony” (153 AD3d

at 861 [internal quotation marks and citations omitted]). A Judge of this Court granted the

People leave to appeal (30 NY3d 1064 [2017]), and we now reverse.

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                                            -4-                                        No. 5

                                            -II-

       Penal Law § 70.06 requires a sentencing court to impose an enhanced sentence

where the defendant is a “second felony offender”—a person “who stands convicted of a

felony . . ., other than a class A-I felony, after having previously been subjected to one or

more predicate felony convictions” (Penal Law § 70.06 [1] [a]). As relevant here, a prior

conviction will not constitute a predicate felony unless it satisfies the “sequentiality

requirement”—namely, that the “[s]entence upon such prior conviction must have been

imposed before commission of the present felony” (Penal Law § 70.06 [1] [b] [ii]

[emphasis added]). Relatedly, the “sentence [also] must have been imposed not more than

[10] years before commission of the felony of which the defendant presently stands

convicted” (Penal Law § 70.06 [1] [b] [iv]).3 The question presented on this appeal is

whether the term “sentence” in these provisions means “resentence” where the original

sentence was vacated because defendant was illegally sentenced as a predicate offender,

yet the underlying conviction remains undisturbed. In other words, we must decide

whether, as urged by defendant, a resentence on a prior conviction imposed after the

commission of a subsequent crime disrupts sequentiality such that the “[s]entence upon

such prior conviction” can no longer be considered to have been imposed prior to

commission of the present felony (Penal Law § 70.06 [1] [b] [ii]). We reject this strained




3
 This 10-year look-back period is tolled for “any period of time during which the person
was incarcerated for any reason between the time of commission of the previous felony
and the time of commission of the present felony” (Penal Law § 70.06 [1] [b] [v]).
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                                             -5-                                         No. 5

interpretation of the predicate felony statutes, because it defies the express language, and

would defeat the purpose, of those statutes.

       In answering any “question of statutory interpretation, our primary consideration is

to ascertain and give effect to the intention of the Legislature” (Matter of DaimlerChrysler

Corp. v Spitzer, 7 NY3d 653, 660 [2006] [internal quotation marks and citations omitted];

see People v Andujar, 30 NY3d 160, 166 [2017]). Because “the clearest indicator of

legislative intent is the statutory text, the starting point in any case of interpretation must

always be the language itself, giving effect to the plain meaning thereof” (Majewski v

Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]; see People v Roberts, 31

NY3d 406, 418 [2018]). We also must consider “the spirit and purpose of the act and the

objects to be accomplished” (People v Silburn, 31 NY3d 144, 155 [2018]). Critically, “a

statute . . . must be construed as a whole and . . . its various sections must be considered

together and with reference to each other” (Matter of Avella v City of New York, 29 NY3d

425, 434 [2017] [internal quotation marks and citation omitted]).

       As this Court has previously observed (People v Thompson, 26 NY3d 678, 687

[2016]), the statutory text of Penal Law § 70.06, itself, establishes that the term “sentence”

is not synonymous with the term “resentence.”            Specifically, for purposes of the

sequentiality requirement and 10-year look-back period, section 70.06 defines “sentence”

as a “[s]uspended sentence, suspended execution of sentence, a sentence of probation, a

sentence of conditional discharge or of unconditional discharge, and a sentence of

certification to the care and custody of the division of substance abuse services” (Penal



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                                            -6-                                        No. 5

Law § 70.06 [1] [b] [iii]).4 Conspicuously absent from this definition is any reference to a

“resentence.” In Thompson, we explained that the use of the word “sentence,” and not the

word “resentence,” is particularly significant because—“unlike a ‘sentence of probation’—

a ‘resentence’ is not defined as a ‘sentence’ under [the predicate felony statutes]” (26 NY3d

at 687). The dissent posits that the resentence in Thompson was different from the

resentence at issue here because Thompson involved a revocation of probation, which

“does not equate to annulling a sentence” (dissenting op at 6). The predicate felony

statutes, however, make no such distinction between types of resentences.

       The omission of any reference to a resentence in the predicate felony statutes is not

“gratuitous,” as defendant asserts. For example, CPL 450.30 (3) similarly distinguishes

between a resentence and a sentence for purposes of taking an appeal, providing that

              “[a]n appeal from a sentence . . . means an appeal from either
              the sentence originally imposed or from a resentence following
              an order vacating the original sentence. For purposes of
              appeal, the judgment consists of the conviction and the original
              sentence only, and when a resentence occurs more than [30]
              days after the original sentence, a defendant who has not
              previously filed a notice of appeal from the judgment may not
              appeal from the judgment, but only from the resentence.”

Inasmuch as the legislature expressly distinguished a “sentence” from a “resentence” in the

Criminal Procedural Law, a related statute, there is no reason to conclude that those terms

are always interchangeable in the Penal Law (see People v Duggins, 3 NY3d 522, 528



4
 This same definitional provision—together with the sequentiality requirement and 10-
year look-back-period—is repeated in the second violent felony offender statute (see Penal
Law § 70.04 [1] [b]) and also controls other predicate felony statutes (see Penal Law §§
70.07 [3]; 70.08 [1] [b]).
                                            -6-
                                            -7-                                        No. 5

[2004] [applying a CPL definition to a Penal Law provision using the same phrase because,

“(w)here the same word or group of words is used in . . . different statutes, if the acts are

similar in intent and character the same meaning may be attached to them” (internal

quotation marks and citation omitted)]).          Indeed, had the legislature intended a

“resentence” to be synonymous with a “sentence” for predicate felony purposes,5 it was

aware—as demonstrated by the text of CPL 450.30 (3)—how to make this directive explicit

(see McKinney’s Cons Laws of NY, Book 1, Statutes § 74; El-Dehdan v El-Dehdan, 26

NY3d 19, 34 [2015]). Nevertheless, the legislature did not do so, despite its inclusion of

provisions in the predicate felony statutes defining the term “sentence” for purposes of

determining whether prior offenses are predicate felonies. Thus, the dissent’s assumption

that “sentence” obviously means “currently-existing, legal sentence” (dissenting op at 2),

whether or not a defendant has been resentenced, is simply unfounded.

       Defendant argues, and the dissent agrees, that People v Bell (73 NY2d 153 [1989])

requires that there be only one controlling sentence for purposes of determining whether a

crime constitutes a predicate felony, and that the proper sentence is the one imposed as part

of the “final judgment” (id. at 165). The CPL, however, directs that the sentence imposed

as part of the final judgment is the original sentence imposed on the conviction, not a

resentence (see CPL 1.20 [15] [“(a) judgment is comprised of a conviction and the sentence

imposed thereon and is completed by imposition and entry of the sentence”]; CPL 450.30

[3] [“the judgment consists of the conviction and the original sentence only” (emphasis


5
 We do not opine on the legislature’s use of the words “sentence” and “resentence” in any
other context.
                                            -7-
                                            -8-                                        No. 5

added)]). In any event, Bell is inapposite. That case stands for the unassailable rule that a

conviction that is subsequently vacated on direct appeal no longer exists and, therefore, can

have no utility for determining whether a prior offense falls within the 10-year look-back

period of the predicate felony statutes (see Bell, 73 NY2d at 165; see Penal Law § 70.06

[1] [a] [“(a) second felony offender is a person who” firstly, “stands convicted of a

felony”]). There is no dispute in this case that defendant’s 1989 convictions are lawful and

were never disturbed. Therefore, Bell does not apply here.

       Instead, we conclude that the circumstances presented in this case are more

analogous to those in People v Boyer (22 NY3d 15 [2013]). Defendant attempts to

distinguish Boyer on the ground that it involved a resentencing to correct a trial court’s

failure to pronounce the postrelease supervision (PRS) component of a determinate

sentence under People v Sparber (10 NY3d 457 [2008]). Boyer held that a Sparber

resentencing does not “reset[] the date of sentence for a felony conviction such that it may

no longer serve as a predicate felony conviction in relation to a subsequently committed

crime” (22 NY3d at 25). In rejecting the defendant’s claim that a “Sparber resentencing

necessarily vacates the defendant’s entire original unlawful sentence and replaces it with a

completely new lawful sentence, thus resetting the date of all components of the

defendant’s sentence,” we determined that “the controlling date of sentence for a

defendant’s prior conviction is the original date on which the defendant received a lawful

prison term pursuant to a valid conviction for that prior crime” (Boyer 22 NY3d at 23-24).

As noted by defendant and the dissent, in reaching this conclusion, we suggested that

Sparber resentencings were unlike other resentencings because “correct[ing] the flawed

                                            -8-
                                            -9-                                         No. 5

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” (Boyer 22 NY3d at 24; see People v Lingle,

16 NY3d 621, 634-635 [2011]). However, we also made clear in Boyer that “we [were]

not opin[ing] on the relationship between the recidivist sentencing statutes and any other

form of resentencing” (Boyer, 22 NY3d at 26 n 3). The present appeal presents us with

our first opportunity to address this relationship, and we conclude that the essential holding

in Boyer—that the original sentence determines the sequentiality of the prior offense where

there is a subsequent Sparber resentencing—also applies where the resentencing is to

correct a sentence that is illegal because the defendant was improperly adjudicated a

predicate felony offender.

       Defendant argues, and the dissent agrees, that a “plenary” resentencing, such as the

one that occurred here, is distinguishable from a Sparber resentencing because the latter

merely adds a required PRS term to an otherwise legal sentence, while a plenary

resentencing involves vacatur of an illegal sentence. As we have recently explained,

however, a Sparber resentencing does, in fact, correct an “illegal” sentence (People v

Estremera, 30 NY3d 268, 271 [2017]). Thus, if the sequentiality requirement turned on

the date of the “currently-existing, legal sentence”—as the dissent posits—the date of a

Sparber resentencing, not the original sentence date, would have controlled in Boyer




                                            -9-
                                            - 10 -                                       No. 5

because the original sentence was illegal.6 We rejected this rule in Boyer and now clarify

that the express language of the predicate felony statutes, not the plenary or clerical nature

of the resentencing, determine the date that “[s]entence upon [the] prior conviction [was]

imposed” (Penal Law § 70.06 [1] [b] [ii]). The statute provides no basis to distinguish

between a sentence that is illegal because the defendant was improperly adjudicated a

predicate felon and one that is illegal because PRS was not pronounced at sentencing, and

we decline defendant’s invitation to fashion such a distinction here. Rather, where

“[s]entence upon such prior conviction [was] imposed before commission of the present

felony” (Penal Law § 70.06 [1] [b] [ii]), the sequentiality requirement is satisfied, even if,

at some undetermined time in the future, the original sentence is vacated as illegal, resulting

in a resentence.

       Not only does this rule avoid rewriting the predicate felony statutes to insert the

phrase “resentence”—or, as the dissent would have it, “currently-existing, legal sentence,”

—in place of “sentence” in order to conjure what our dissenting colleagues consider to be

a more fair result (see Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382,

394 [1995] [“(n)ew language cannot be imported into a statute to give it a meaning not

otherwise found therein” (internal quotation marks and citation omitted)]; see also

McKinney’s Cons Laws of NY, Book 1, Statutes § 73 [“(t)he courts in construing statutes



6
  The dissent would, in effect, have us either overrule Boyer or repudiate our statement in
Estremera that a Sparber resentencing allows the trial court to reimpose sentence even if
the “terms are identical to the illegal sentence originally imposed” (Estremera, 30 NY3d at
271). We decline to do either inasmuch as Boyer and Estremera are both entirely consistent
with the plain language of the predicate felony statute.
                                            - 10 -
                                           - 11 -                                      No. 5

should avoid judicial legislation; they do not sit in review of the discretion of the

Legislature or determine the expediency, wisdom, or propriety of its action on matters

within its powers”]), it also effectuates the long-recognized purpose of those statutes (see

Silburn, 31 NY3d at 155). By enacting harsher punishments for recidivists, the legislature

intended to penalize qualifying defendants for their “refusal to reform after sentence on a

prior crime had been imposed” (People v Morse, 62 NY2d 205, 222 [1984], appeal

dismissed 469 US 1186 [1985]). Put differently, the goal was “to deter recidivism by

enhancing the punishments of those who, having been convicted of felonies, violate the

norms of civil society and commit felonies again” (People v Walker, 81 NY2d 661, 665

[1993]; see People v Cagle, 7 NY3d 647, 651 [2006]). As we explained in the Sparber

context:

               “[A] defendant who was sentenced for a prior conviction and
              then commits a new crime plainly deserves enhanced
              punishment for the new crime because the defendant remains
              unchastened after the court’s pronouncement of the sentence
              for the prior conviction, and the defendant’s heightened
              culpability cannot be mitigated in any way by a subsequent
              Sparber resentencing”

(Boyer, 22 NY3d at 26 [emphasis added]).

       Precisely the same rationale applies regardless of the reason the original sentence

was later held to be illegal, because the legislature has determined that merely hearing a

sentence imposed should deter further unlawful conduct (see Morse, 62 NY2d at 222). By

following the legislative directive that the governing date under the sequentiality

requirement is when “[s]entence upon such prior conviction [was] imposed” (Penal Law §

70.06 [1] [b] [ii]), we give the prior illegal sentence only as much “operative legal effect”

                                           - 11 -
                                            - 12 -                                      No. 5

(dissenting op at 2) as the Penal Law allows, and effectuate the purpose of the multiple

offender statutes—namely, to hold defendants accountable for failing to comport with the

norms of civil society even after being subjected to the “chastening effect of sentence on

[a] prior conviction” (Morse, 62 NY2d at 219).7 Moreover, the rule we espouse today

“promotes clarity and fairness” and “does not favor one party over the other” (Boyer, 22

NY3d at 26).     Just as defendants are barred from using the date of a subsequent

resentencing to interrupt the sequence of their criminal history and avoid an enhanced

sentence, so too will the People be precluded from using a resentence to extend artificially

the 10-year look-back period to crimes that would otherwise fall outside that period.

Indeed, applying the resentence date instead of the original sentence date could, in some

cases, defeat the ameliorative purpose of the look-back period, which requires only that

“prior felons . . . demonstrate their ability to live within the norms of civil society for 10

years” (Cagle, 7 NY3d at 651).8 Such a rule would also render a defendant’s predicate


7
  We cannot agree with the dissent that, upon resentence, the original sentence was wholly
without legal effect. After vacating the original sentences on the 1989 convictions,
defendant was resentenced, nunc pro tunc, and duly credited for the time served beginning
from the date of his original sentences (see Penal Law § 70.30 [5] [“(w)hen a sentence of
imprisonment that has been imposed on a person is vacated and a new sentence is imposed
on such person for the same offense, or for an offense based upon the same act, the new
sentence shall be calculated as if it had commenced at the time the vacated sentence
commenced, and all time credited against the vacated sentence shall be credited against the
new sentence”]).
8
  The dissent’s theory that, “if the resentencing date controls, the People will have an
additional incentive to move promptly to correct the illegal sentence” (dissenting op at 10
n 2) fails to acknowledge that the People must move to set aside a sentence “upon the
ground that it was invalid as a matter of law” within “one year after entry of a judgment”
(CPL 440.40 [1]; cf. Correction Law § 601-d). However, a defendant has no similar time
restriction. Consequently, if defendant’s position on appeal were accepted, a defendant

                                            - 12 -
                                             - 13 -                                       No. 5

felony status arbitrary, since it would depend entirely upon when a successful challenge to

the sentence on the underlying conviction was made. In fact, defendant here already served

the sentences that were subsequently determined to be illegal. Thus, in moving to set aside

his original 1989 sentences, “defendant[] manifestly had no expectation that [he] would

obtain relief from those originally imposed, fully discharged sentences” (People v

Acevedo, 17 NY3d 297, 303 [2011] [internal quotation marks omitted]). Rather, it is

“transparent” from the timing of defendant’s CPL 440.20 motion that his “purpose was, by

means of vacatur and resentence, to render [the] prior convictions useless as predicates to

enhance punishment for the crimes . . . subsequently committed” (id.). As we previously

have stated, “[r]esentence is not a device appropriately employed simply to alter a

sentencing date and thereby affect the utility of a conviction as a predicate for the

imposition of enhanced punishment” (id.).9


could conceivably manipulate the availability of a predicate felony conviction by strategic
timing of a motion to resentence.
9
  The dissent reasonably concedes that the legislature may have “intended to keep prior
crimes in their original sequence even where a resentencing has occurred and the original
sentence has been vacated,” but concludes that the legislative history on this issue is
“sparse,” the sequentiality requirement has never been amended despite other amendments
to the statute, and the Appellate Division departments have universally determined that the
resentencing date applies (dissenting op at 3, 8-9). Then—in an apparent attempt to support
its conclusion that the legislature intended the resentencing date to govern sequentiality—
the dissent cites the legislature’s failure to enact the Advisory Committee on Criminal Law
and Procedure’s proposed amendment to the predicate felony statutes that would more
clearly state that the original sentence date applies in cases such as this. Legislative
inaction, however, “is a weak reed upon which to lean in determining legislative intent”
(Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 433 [1969] [internal quotation marks
and citation omitted]; see People v Ocasio, 28 NY3d 178, 183 n 2 [2016] [“(legislative)
inaction is susceptible to varying interpretations”]). It is equally likely that the legislature
has failed to enact the proposed amendment because it recognized, as we hold today, that

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                                             - 14 -                                        No. 5

                                              -III-

       In sum, defendant’s proffered interpretation of Penal Law § 70.06 is not supported

by the plain language of that provision, its well-established legislative purpose, or our

precedent. Therefore, because the original sentences on defendant’s 1989 convictions were

imposed before commission of the present felony, the sequentiality requirement of the

predicate felony statute was satisfied, and defendant was properly sentenced as a second

felony offender.

       Accordingly, the order of the Appellate Division should be reversed, and

defendant’s motion to set aside the sentence denied.




the predicate felony statutes already unambiguously require sentencing courts to look to
the date of the original sentence. Moreover, the Advisory Committee recommendation
itself recognizes, by citation to Morse, that the intent of the predicate felony statute is well-
settled—that is, “to impose more severe punishment on persons who continue to commit
serious crimes relatively soon after having been subjected to punishment for other serious
criminal conduct” because of “a defendant’s disregard for the ‘chastening effect of
sentence on the prior conviction’” (see Report of the Advisory Committee on Criminal
Law and Procedure to the Chief Administrative Judge of the Courts of the State of New
York, Jan. 2013 at 21, available at
https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2013-
CriminalLaw&Procedure-ADV-Report.pdf [accessed January 24, 2019], quoting People v
Morse, 62 NY2d at 219).
                                             - 14 -
People v Michael Thomas

No. 5




FAHEY, J. (dissenting):

        It has been a fundamental principle of our jurisprudence that an illegal sentence

cannot stand, so much so that we do not require the preservation of a challenge to such a

sentence (see People v Nieves, 2 NY3d 310, 315 [2004]; People v Samms, 95 NY2d 52,



                                           -1-
                                              -2-                                          No. 5


56 [2000]). Here the Court is required to look to the first legal sentence, not the original

sentence. Legality should prevail over chronology.

         The majority’s interpretation of Penal Law § 70.06 cannot be reconciled with

several undisputed facts. The sentences imposed upon defendant in 1989 were illegal. For

that reason, upon defendant’s motion, those sentences were vacated in their entirety, and

new, legal terms of imprisonment were imposed. The original 1989 sentences therefore

ceased to exist. The only “sentences” that currently exist on those 1989 convictions were

imposed in 2009 and 2012. Thus, “sentences” on defendant’s 1989 convictions were not

“imposed” before defendant committed his 1993 felony (see Penal Law § 70.06 [1] [b]

[ii]).

         In allowing the date of the original, vacated sentences to control, the majority has

allowed illegal sentences to continue to have operative legal effect. I therefore respectfully

dissent.

                                               I.

         The majority first concludes that defendant’s position that the resentencing date

should control cannot be reconciled with the plain language of the statute. This conclusion

is based on the observation that the legislature used the word “sentence” and not

“resentence” in the text of the statute (see Penal Law § 70.06 [1] [b] [ii]). Yet the legislature

also did not use the phrase “original sentence” or similar language that might indicate that

it intended for anything other than the currently-existing, legal sentence imposed on the

conviction to apply for second felony offender purposes.


                                              -2-
                                            -3-                                         No. 5


       Indeed, although Penal Law § 70.06 has been amended several times since its

enactment in 1973, the particular subparagraph at issue here—Penal Law § 70.06 (1) (b)

(ii)—remains in its original form (see L 1973, ch 277, § 9). This law was enacted at the

same time as comprehensive legislation addressing, among other things, harsher prison

sentences for drug offenses (see L 1973, chs 276-278; Governor’s Mem approving L 1973,

chs 276-277, 1973 NY Legis Ann at 1-4; M.A. Farber, Fixed-Term Laws Draw Opposition:

Groups Criticize Mandatory Minimums Set by State for Non-Drug Crimes, NY Times,

Sept. 24, 1973, at 1, 20, available at https://www.nytimes.com/1973/09/24/ archives/

fixedterm-laws-draw-opposition-groups-criticize-mahdatory-minimums.html

[last accessed Feb. 12, 2019]). In this context, there is no reason to believe that the use of

the term “[s]entence” in Penal Law § 70.06 (1) (b) (ii) represents anything other than the

legislature’s assumption that the sentence imposed upon the prior conviction would be a

legal one.

       I disagree with the majority’s assertion that the Criminal Procedure Law “directs

that the sentence imposed as part of the final judgment is the original sentence imposed on

the conviction, not a resentence” (majority op at 7). CPL 1.20 (15) states that a judgment

consists of “a conviction and the sentence imposed thereon”; it does not state that a

“resentence” cannot constitute a “sentence,” particularly where the original sentence was

vacated as illegal and no longer exists. Furthermore, CPL 450.30 (3) does not support the

majority’s interpretation because it expressly states that “[f]or purposes of appeal, the

judgment consists of the conviction and the original sentence only” (emphasis added). This


                                            -3-
                                              -4-                                     No. 5


provision is meant merely to clarify that if the resentencing occurs more than 30 days after

the original sentencing, a defendant must file two notices of appeal, one from the original

judgment and one from the resentence, in order to preserve the right to appeal from both

the judgment and the resentence, respectively (see id.). The subdivision expressly states

that its provisions are limited to appeals (id.).

        The majority’s conclusion that by using the word “sentence” in Penal Law § 70.06,

the legislature meant “original sentence” to the exclusion of “resentences” simply because

it separately employed those terms in CPL 450.30 is incorrect. The Criminal Procedure

Law contains multiple statutes that apply to “sentencing” (see e.g. CPL article 380). These

provisions remain applicable when a defendant is resentenced, even though those statutes

use only the word “sentence” and not “resentence.” We recently held that CPL 380.40 (1),

which provides that a defendant “must be personally present at the time sentence is

pronounced,” applies to a resentencing proceeding (see People v Estremera, 30 NY3d 268,

269 [2017]). We reasoned that “whether such a proceeding is technically a ‘resentencing’

proceeding, as opposed to a proceeding to ‘reimpose’ a prior sentence, it is unquestionably

a proceeding at which ‘sentence is pronounced’ as contemplated in CPL 380.40” (id. at

271).

        It is undisputed that both the Penal Law and the Criminal Procedure Law are filled

with references to “sentence” or “sentencing” that New York courts and criminal

practitioners routinely and correctly apply equally to sentences and resentences. The fact




                                              -4-
                                            -5-                                         No. 5


that the legislature used the word “sentence” in Penal Law § 70.06 (1) (b) (ii) and not the

word “resentence” is neither dispositive nor, in my view, particularly significant.

                                             II.

       With respect to this Court’s precedent, I agree with the majority that People v Bell

is distinguishable from the present case because there both the original conviction and the

sentence were vacated after the defendant’s successful appeal (73 NY2d 153, 165 [1989]).

Nevertheless, Bell is instructive. The Court held that the applicable “sentence” for

purposes of Penal Law § 70.06 was “the sentence imposed as a part of the final judgment,”

not the original sentence that was later vacated on appeal along with the conviction (id.).

The Court said that it reached that holding “for the reasons stated” in the dissenting opinion

of Justice Sullivan at the Appellate Division (id.). In that dissenting opinion, Justice

Sullivan reasoned that upon vacatur of the judgment, the “defendant’s earlier conviction

was no longer a conviction,” and “the sentence based on that conviction was no longer a

sentence” (People v Bell, 138 AD2d 298, 300 [1st Dept 1988, Sullivan, J., dissenting]).

       That reasoning applies equally to this scenario. The original sentences imposed on

defendant’s 1989 convictions were illegal and, for that reason, they were vacated in their

entirety. Those original sentences no longer exist. In other words, upon their vacatur, each

of the 1989 sentences “was no longer a sentence” (id.). The only “sentences” that currently

exist for defendant’s 1989 convictions are the legal sentences imposed in 2009 and 2012.

       The majority’s reliance on People v Thompson (26 NY3d 678 [2016]) is misplaced.

Granted, we stated in that case that “unlike a ‘sentence of probation’—a ‘resentence’ is not


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defined as a ‘sentence’ under Penal Law § 70.04 (1) (b) (iii) for the purpose of calculating

the 10-year look-back period” (id. at 687). That statement, however, must be considered

within the context of the case. In Thompson, the defendant argued that the original

sentencing date, at which a sentence of probation was imposed, should control for recidivist

sentencing purposes, rather than the later resentencing date when his probation was

revoked and he was sentenced to a term of imprisonment (see id. at 681-683). We agreed

with the defendant that the original sentencing date controlled based on our conclusion that

“to revoke a penalty of probation does not equate to annulling a sentence” (id. at 681). We

relied on the conditional nature of a revocable sentence, describing it as a “tentative

punishment in that it may be altered or revoked” (id. at 686 [internal quotation marks and

alterations omitted]).   Importantly, we stated that “the substitution of a different

punishment—such as incarceration—for the probation a defendant has violated does not

constitute a new sentence, but rather a replacement of the original, conditional penalty

reflected in the sentence” (id.). Here, by contrast, the original sentences imposed on

defendant’s 1989 convictions were vacated and annulled. Entirely new sentences were

imposed in 2009 and 2012. No revocable sentences are at issue.

       The majority’s reliance on People v Boyer (22 NY3d 15 [2013]) is puzzling. As the

majority acknowledges, the Boyer Court expressly stated that “[i]n reaching this

conclusion regarding the significance of a Sparber resentencing under the sequentiality

requirement for recidivist sentencing, we do not opine on the relationship between the

recidivist sentencing statutes and any other form of resentencing” (id. at 26 n 3). Even if


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one were to rely on the reasoning of the Boyer Court despite this disclaimer, that reasoning

supports the conclusion that the resentencing date controls under these circumstances. The

Court concluded that a Sparber resentencing did not constitute “a vacatur of a defendant’s

entire original sentence” but rather amounted to the correction of a clerical error that did

not “permit the resentencing court to alter the defendant’s prison term or otherwise change

any aspect of his or her sentence” (id. at 24). In other words, a Sparber 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” (id.).

       None of those conditions are present here. The original sentences imposed upon

defendant’s 1989 convictions were illegal, and therefore when the court resentenced

defendant in 2009 and 2012, the court was obligated to vacate the entire original sentence

and alter the prison term to a legal term. There is no dispute that here defendant’s original

sentences were vacated and replaced with entirely new sentences.

       The majority cites Estremera to note that we have recently clarified that “a Sparber

resentencing does, in fact, correct an ‘illegal’ sentence” (majority op at 9). We cautioned

in Estremera, however, that “nothing herein should be read to conflict with our prior

decision in [Boyer]” (Estremera, 30 NY3d at 271 n 2). The majority’s decision calls into

question our reasoning in Boyer, which was based primarily on the fact that a Sparber

resentencing was akin to the correction of a clerical error, the original term of imprisonment

was legal and remained unchanged, and the original sentence was not vacated and replaced


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with an entirely new sentence. Today, the majority holds that even where the original term

of imprisonment was illegal, was vacated for that reason at a plenary resentencing, and was

replaced with an entirely new sentence, the original sentence continues to control for

purposes of the recidivist sentencing statutes. The majority’s conclusion is not supported

by the Court’s reasoning in Boyer.

                                             III.

       Finally, the majority concludes that utilizing the original sentencing date despite the

plenary resentencing effectuates the legislative purpose of the recidivist sentencing statutes

(see majority op at 10-12). It is possible that the legislature intended to keep prior crimes

in their original sequence even where a resentencing has occurred and the original sentence

has been vacated. Nevertheless, there is no legislative history addressing this issue, and

we have previously described the legislative history surrounding this enactment as “sparse”

(People v Cagle, 7 NY3d 647, 651 [2006]). As explained above, the legislature may have

simply assumed that the sentence imposed on the prior crime would be a legal one. It is

equally possible, in my view, that the legislature would not wish the courts to give legal

effect to an illegal sentence that has been vacated and no longer exists when applying the

recidivist sentencing statutes.

       Indeed, the Appellate Division has generally arrived at the opposite conclusion of

the majority here, and has held that the resentencing date controls when the original

sentence has been vacated (see People v Jamison, 138 AD3d 1020, 1021 [2d Dept 2016],

lv denied 28 NY3d 931 [2016]; People v Esquiled, 121 AD3d 807, 808 [2d Dept 2014], lv


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denied 25 NY3d 1201 [2015], reconsideration denied 26 NY3d 967 [2015]; People v

Boyer, 19 AD3d 804, 806 [3d Dept 2005], lv denied 5 NY3d 804 [2005]; People v Wright,

270 AD2d 213, 215 [1st Dept 2000], lv denied 95 NY2d 859 [2000]; People v Robles, 251

AD2d 20, 21 [1st Dept 1998], lv denied 92 NY2d 904 [1998]; People v Juliano, 207 AD2d

414, 415 [2d Dept 1994], lv denied 84 NY2d 937 [1994]). The People have not identified

any case where the Appellate Division has applied the original sentencing date after the

original sentence has been vacated and an entirely new sentence has been imposed.1

       Furthermore, I would apply the resentencing date as a matter of fairness. This Court

has generally refused to interpret the predicate felony offender sentencing statutes in a

manner that takes into account an illegal incarceration (see generally People v Small, 26

NY3d 253, 260-261 [2015]; People v Dozier, 78 NY2d 242, 249-250 [1991]; People v

Love, 71 NY2d 711, 716 [1988]). Although the underlying conviction was either invalid


1
  In addition, since 2013, the Advisory Committee on Criminal Law and Procedure has
recommended that the legislature amend the recidivist sentencing statutes to clarify that
where, as here, the original sentence has been vacated as illegal and the defendant is
resentenced, but the underlying conviction is not disturbed, the controlling sentencing date
is the date that the original sentence was imposed (see Report of the Advisory Committee
on Criminal Law and Procedure to the Chief Administrative Judge of the Courts of the
State of New York, Jan. 2013, at 21-23, available at
https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2013-
CriminalLaw&Procedure-ADV-Report.pdf [last accessed Feb. 12, 2019]). After 2013, this
recommendation has been included in the Advisory Committee Report either as a
“Previously Endorsed Measure” or a “Temporarily Tabled Previously Endorsed Measure”
(see Reports of the Advisory Committee on Criminal Law and Procedure to the Chief
Administrative Judge of the Courts of the State of New York, Jan. 2014-Jan. 2018).
Despite the Appellate Division decisions and the Advisory Committee’s recommendation,
the legislature has not acted to clarify that it intends for the original sentencing date to
control under these circumstances.

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or called into question in those cases, the same logic should apply here. An illegal, vacated

sentence should not be used to enhance a defendant’s future punishment.

         Moreover, like the majority’s rule (see majority op at 12), a rule that applies the

resentencing date where the original sentence has been vacated would not favor either the

defendant or the People. In some cases, like this one, the defendant will benefit, but in

others, the resentencing date will bring a defendant’s prior conviction within the 10-year

look-back period (see e.g. Juliano, 207 AD2d at 415).2

         The majority’s holding allows a sentence that has been vacated as illegal and no

longer exists to be used to enhance the punishment imposed upon a defendant for a

subsequent criminal offense. This holding is not supported by the text of the statute or any

legislative history, conflicts with our prior case law, and most importantly is unjust. I

therefore respectfully dissent.

*    *       *    *     *    *     *    *     *      *   *     *    *     *     *    *      *

Order reversed and defendant’s motion to set aside sentence denied. Opinion by Judge
Stein. Chief Judge DiFiore and Judges Garcia and Feinman concur. Judge Fahey dissents
in an opinion in which Judges Rivera and Wilson concur.


Decided February 19, 2019




2
  Few if any criminal defendants will knowingly serve illegally harsh sentences in the hope
that if they commit another felony in the future, they will be able to move for resentencing
and thereby alter the sequence of their criminal history in order to avoid enhanced
punishment under the recidivist sentencing statutes. In most cases, the resentencing will
likely occur in far closer temporal proximity to the original sentencing. In addition, if the
resentencing date controls, the People will have an additional incentive to move promptly
to correct the illegal sentence if the defendant fails to do so.
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