This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 16
The People &c.,
            Respondent,
        v.
Freddie Thompson,
            Appellant.




          A. Alexander Donn, for appellant.
          Anne Grady, for respondent.




FAHEY, J.:
          This appeal turns on our conclusion that to revoke a
penalty of probation does not equate to annulling a sentence
under Penal Law § 60.01.   In November 2010, defendant was
convicted of, inter alia, two counts of the class B violent

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felony of robbery in the first degree (Penal Law § 160.15 [4])
(generally, instant conviction).   Our primary interest in this
case, however, lies not with those crimes, but with one of
defendant’s prior convictions -- specifically, his June 1994
conviction of the class B violent felony of assault in the first
degree (Penal Law § 120.10 [1])(generally, prior conviction)--
and the question whether that conviction qualifies as a predicate
violent felony offense (see Penal Law § 70.04 [1] [b] [second
violent felony offender statute]) for the purpose of sentencing
him as a second violent felony offender with respect to the
instant conviction.
          Defendant was originally sentenced to probation with
respect to the prior conviction on June 8, 1994 (generally,
original sentence).   After violating that probation, however,
defendant was resentenced on December 21, 1995 to a prison term
with respect to that crime (generally, resentence).
          The principal question before us is whether the date of
the original sentence, rather than the date of the resentence,
determines whether the prior conviction comes within the 10-year
look-back period in the second violent felony offender statute
for the purpose of imposing sentence on the instant conviction
(see Penal Law § 70.04 [1] [b] [iv] [providing, subject to an
exception immaterial here, that “sentence must have been imposed
not more than (10) years before commission of the felony of which
the defendant presently stands convicted” for the prior
conviction to constitute a predicate violent felony conviction]).

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Based on our determination that the revocation of probation under
Penal Law § 60.01 is not the analogue of the annulment of a
sentence, we conclude that the original sentence controls for the
purposes of determining eligibility under the look-back period in
Penal Law § 70.04.   We further conclude that, on these facts,
defendant should not have been resentenced as a second violent
felony offender with respect to the instant conviction.
                                I.
          The instant robberies were committed on February 18 and
February 25, 2010 and, in December 2010, Supreme Court sentenced
defendant, as a second felony offender, to concurrent terms of 20
years’ incarceration to be followed by five years’ postrelease
supervision (PRS) with respect to that conviction.   Defendant was
adjudicated a second felony offender based on a prior drug
conviction.
          Approximately two months later, the People
“recommended” that the court treat defendant as a second
violent felony offender based on the prior conviction, that is,
the June 8, 1994 conviction of assault in the first degree. As
noted, with respect to that conviction defendant initially was
sentenced to five years’ probation.    That probation, however, was
later revoked and, in place of the original sentence of
probation, defendant was resentenced to a term of 2 to 6 years’
incarceration on December 21, 1995.
          In view of what they characterized as the December 21,


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1995 “re-sentence date” with respect to the prior conviction, the
People submitted to the sentencing court papers “in support of
treating defendant as a second [violent] felony offender” with
respect to the instant conviction.    There, the People contended
that, to the extent the “re-sentence date of December 21, 1995”
controls as the date on which sentence was imposed upon the prior
conviction, that conviction would qualify as a predicate violent
felony pursuant to Penal Law § 70.04 (1) (b) (iv), thereby
rendering defendant eligible to be sentenced as a second violent
felony offender with respect to the instant conviction.   There is
no dispute that, to the extent the resentence date is the
controlling date of sentence with respect to the prior
conviction, that conviction would constitute a predicate violent
felony and thus subject defendant to sentencing as a second
violent felony offender with respect to the instant conviction.
It is also undisputed that, to the extent the date of the
original sentence controls for determining when “sentence [was]
imposed” (§ 70.04 [1] [b] [iv]) with respect to the prior
conviction, defendant cannot now be adjudicated a second violent
felony offender on the basis of that crime.
          Supreme Court agreed with the People that the date of
the resentence, not the date of the original sentence, is the
controlling date for the calculation of the look-back period, and
it adjudicated defendant a second violent felony offender for the
purpose of imposing sentence upon the instant conviction.     In


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resentencing defendant with respect to those robbery crimes, the
court reimposed its initial punishment, that is, it ordered
concurrent determinate terms of 20 years’ incarceration to be
followed by five years’ PRS.
            Defendant subsequently appealed from both the judgment
of conviction and sentence, and the resentence.   The Appellate
Division dismissed the appeal from so much of the judgment as
imposed the sentence, and it rejected defendant’s challenges to
the balance of the judgment, which were based on grounds not at
issue here (118 AD3d 822, 822-823 [2d Dept 2014]).   The Appellate
Division modified the resentence as a matter of discretion in the
interest of justice by reducing the determinate terms of
imprisonment imposed upon the instant conviction from 20 years to
15 years, and, as so modified, it affirmed the resentence (see
id.).    In doing so, that court concluded that Supreme Court did
not err in resentencing defendant as a second violent felony
offender inasmuch as the controlling date of the imposition of
sentence for the prior conviction is the date of the resentence,
not the date of the original sentence (see id. at 823).    A Judge
of this Court granted defendant leave to appeal (24 NY3d 1089
[2014]), and we now reverse the order of the Appellate Division
insofar as appealed from.1



     1
          Defendant challenges only the part of the Appellate
Division order that affirmed the adjudication of defendant as a
second violent felony offender on the resentence.

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                                  II.
          Before addressing the main issue before us, we consider
the preliminary question whether this Court may hear this appeal.
The People contend that this Court is powerless to address the
merits of this case for three main reasons.      None of those points
has merit.
          First, the People contend that CPL 450.90 (1), which
governs an appeal to this Court from an order of an intermediate
appellate court, does not vest this Court with jurisdiction to
hear this appeal.   That section provides, in relevant part, that
“[a]n order of an intermediate appellate court is adverse to the
party who was the appellant in such court when it affirms the
judgment, sentence or order appealed from . . . .     An appellate
court order which modifies a judgment or order appealed from is
partially adverse to each party.”
          According to the People, the Appellate Division merely
modified the resentence here, and because the last sentence of
CPL 450.90 (1) provides that an Appellate Division order that
modifies a judgment or order appealed from is partially adverse
to each party, but does not say that an Appellate Division order
that modifies a resentence creates adversity, this Court has no
authority to hear this appeal.    We disagree.   The Appellate
Division order modified the resentence to the extent of reducing
defendant’s period of incarceration from 20 to 15 years, but it
otherwise affirmed the resentence (see 118 AD3d at 822-823; see
also CPL 450.30 [3] [equating a resentence with a sentence for

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the purpose of specifying the instances in which a defendant may
appeal to an intermediate appellate court]).    That affirmance
unquestionably creates adversity here, and it defeats the
People’s contention that we lack jurisdiction under CPL 450.90
(1) to hear this appeal.
          Second, the People contend that we should not consider
the merits of this appeal because “the Appellate Division’s
rejection of defendant’s claim to have been improperly
adjudicated a [second] violent felony offender . . . has no
practical impact on . . . defendant.”    The People appear to
suggest that this appeal is moot because defendant’s 15-year
period of incarceration would be legal even if defendant had been
sentenced as a second felony offender, rather than as a second
violent felony offender (see Coleman v Daines, 19 NY3d 1087, 1090
[2012] [“an appeal is moot unless an adjudication of the merits
will result in immediate and practical consequences to the
parties”]).   In so contending the People ignore Penal Law §
70.08, which sets criteria for a sentence of imprisonment for a
persistent violent felony offender.    Pursuant to that statute,
the test for whether a prior violent felony constitutes a
predicate violent felony for the purpose of adjudicating a
defendant a persistent violent felony offender is the same as the
test for determining whether a prior felony is a predicate one
for the purpose of adjudicating a defendant a second violent
felony offender (see Penal Law § 70.08 [1] [b]).    Consequently,


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to the extent the date of the resentencing on the prior
conviction controls for the purpose of determining whether
defendant is a second violent felony offender with respect to the
instant conviction, defendant theoretically could be adjudicated
a persistent violent offender based on the prior conviction
should he quickly recidivate upon his release from his current
incarceration.   To that end, even though the trial court did not
change defendant’s period of incarceration upon resentencing him
as a second violent felony offender relative to the instant
conviction, the People are wrong to the extent they contend that
no practical impact flows from defendant’s adjudication as a
second violent felony offender.
          Third, the People contend that this appeal is beyond
our review because defendant’s challenge to his resentence as a
second violent felony offender in this case is based on facts,
rather than on the law (see CPL 470.35 [1]).   We reject that
contention inasmuch as the issue whether defendant was properly
resentenced as a second violent felony offender turns on our
interpretation of Penal Law §§ 70.04 and 60.01, which is a
question of law (see generally Bragg v Genesee County Agric.
Socy., 84 NY2d 544, 552 [1994]).2
                               III.
          Turning to the merits, “[i]n matters of statutory


     2
          Finally, under the circumstances of this case, we
reject the People’s alternative contention with respect to
appealability.

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interpretation, our primary consideration is to discern and give
effect to the Legislature's intention” (Matter of Albany Law
School v New York State Off. of Mental Retardation & Dev.
Disabilities, 19 NY3d 106, 120 [2012]).   “To that end, . . . we
must look first to the statutory text, which is ‘the clearest
indicator of legislative intent’ ” (Matter of New York County
Lawyers’ Assn. v Bloomberg, 19 NY3d 712, 721 [2012], rearg denied
20 NY3d 983 [2012], quoting Majewski v Broadalbin-Perth Cent.
School Dist., 91 NY2d 577, 583 [1998]; see Matter of Wallach v
Town of Dryden, 23 NY3d 728, 744 [2014], rearg denied 24 NY3d 981
[2014] [describing a three-part statutory interpretation analysis
involving review of (1) the plain language of the statute; (2)
the statutory scheme as a whole; and (3) the relevant legislative
history]).
          Guided by those principles, we conclude that the lower
courts erred in determining that the controlling date of sentence
for the prior conviction is the date of the resentence, not the
date on which the original sentence was imposed with respect to
that crime.   Penal Law § 70.04 is entitled “[s]entence of
imprisonment for second violent felony offender,” and it
essentially provides that a person is a second violent felony
offender when he or she stands convicted of a violent felony
(Penal Law § 70.04 [1] [a]) and was previously convicted of a
violent felony for which “[s]entence [was] imposed [not only]
before commission of the present felony” (Penal Law § 70.04 [1]


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[b] [ii] [emphasis added]), but also within “[10] years before
commission of the [present] felony” (Penal Law § 70.04 [1] [b]
[iv]; see Penal Law § 70.04 [1] [b] [v] [containing a tolling
exception relative to the 10-year look-back period that is
immaterial here]).   As noted, there is no dispute that if the
date of the original sentence (June 8, 1994) is controlling for
the purpose of the second violent felony offender analysis,
defendant does not qualify as a second violent felony offender
pursuant to section 70.04 (1) (b).      Similarly, if the date of the
resentence (December 21, 1995) controls for the purpose of that
analysis, then defendant qualifies as a second violent felony
offender under that statute.
          The People would have us believe that sentence was
imposed with respect to the prior conviction twice -- once, in
1994, when defendant was subject to a period of probation through
the original sentence, and again in 1995, when defendant was
subject to a period of incarceration through the resentence.      To
be sure, the period of probation was imposed as part of a
revocable sentence (Penal Law § 60.01 [2] [a] [i]), which is a
“tentative [punishment in] that it may be altered or revoked”
(Penal Law § 60.01 [2] [b]).   For all other purposes, however, a
revocable sentence “shall be deemed to be a final judgment of
conviction” (id.), and where “the part of the sentence that
provides for probation is revoked, the court must sentence [a
defendant] to imprisonment or to [a] sentence of imprisonment and


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probation” (Penal Law § 60.01 [4] [emphasis added]).   The
legislature’s reference to the revocation of the part of the
sentence imposing probation suggests 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.
          Put differently, to revoke a penalty of probation does
not equate to annulling a sentence.   That the legislature said
that “the court must sentence [the defendant] to imprisonment or
to [a] sentence of imprisonment and probation” (Penal Law § 60.01
[4] [emphasis added]) upon the revocation of probation does not
support a contrary conclusion.   In that context, the legislature
used the emphasized form of “sentence” as a transitive verb and
provided merely that, where probation is revoked, a court must
impose a harsher punishment to include imprisonment (see Samiento
v World Yacht Inc., 10 NY3d 70, 77-78 [2008] ["The language of a
statute is generally construed according to its natural and most
obvious sense . . . in accordance with its ordinary and accepted
meaning, unless the Legislature by definition or from the rest of
the context of the statute provides a special meaning"] [internal
quotation marks omitted]; see also Webster’s Third New
International Dictionary 2068 [3d ed 2002] [defining “sentence”
as, among other things, a transitive verb meaning “to prescribe
the penalty or punishment of”]).   Indeed, we have characterized


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the punishment imposed upon the revocation of a period of
probation as a resentence (see People v Feliciano, 17 NY3d 14, 19
[2011], rearg denied 17 NY3d 848 [2011]), and -- unlike a
“sentence of probation” -- a “resentence” is not defined as a
“sentence” under Penal Law § 70.04 (1) (b) (iii) for the purpose
of calculating the 10-year look-back period.   In addition,
section 70.04 (1) (b) (iv) specifically states that a “sentence
[with respect to a prior felony, not a resentence,] must have
been imposed not more than [10] years before commission of the
[present] felony” for the prior felony to constitute a predicate
crime (id. [emphasis added]; see generally People v Boyer, 22
NY3d 15, 25 [2013] [“irrespective of any resentence . . ., the
original (s)entence for (a) prior conviction remains valid”]
[internal quotation marks omitted]).
          Finally, to the extent this is an instance in which a
reasonable mind could conclude that the period of incarceration
imposed on December 21, 1995 with respect to the prior conviction
constitutes a sentence and, for the purpose of this case, thus
brings that conviction within the look-back period in the second
violent felony offender statute, the result would not change.      At
worst (or best, depending on one’s perspective) this is an
instance in which two constructions of Penal Law §§ 70.04 and
60.01 are plausible, and to that end “the one more favorable to
the defendant should be adopted in accordance with the rule of
lenity” (People v Golb, 23 NY3d 455, 468 [2014], rearg denied 24


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NY3d 932 [2014], cert denied 135 S Ct 1009 [2015] [internal
quotation marks omitted]).
            Accordingly, the order of the Appellate Division
insofar as appealed from should be reversed, the second violent
felony offender adjudication vacated and the case remitted to
Supreme Court for resentencing.
*   *   *     *   *   *   *   *     *      *   *   *   *   *   *     *   *
Order insofar as appealed from reversed, second violent felony
offender adjudication vacated, and case remitted to Supreme
Court, Richmond County, for resentencing. Opinion by Judge
Fahey. Judges Pigott, Rivera, Abdus-Salaam and Stein concur.
Chief Judge DiFiore and Judge Garcia took no part.

Decided February 11, 2016




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