People v. Acevedo

OPINION OF THE COURT

Tom, J.P.

Defendant appeals from the denial of his CPL 440.20 motion to set aside the sentence imposed upon his adjudication as a second felony drug offender based on a 2001 conviction. Under Penal Law § 70.06 (1) (b) (ii), it is the sentence date that determines whether a crime constitutes a predicate offense, not the date of conviction. Since defendant was resentenced for the 2001 crime after the instant offense was committed, the second felony adjudication and the sentence entered thereon must be vacated.

In June 2001, defendant pleaded guilty to attempted robbery in the…