Opinion
2014-11-18
The PEOPLE of the State of New York, Respondent, v. Corey L. THOMAS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Marianne Stracquadanio of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Marianne Stracquadanio of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Peter J. Benitez, J.), rendered May 31, 2013, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.
The sentencing court properly adjudicated defendant a second violent felony offender. Defendant's predicate felony, criminal possession of a weapon in the third degree pursuant to former Penal Law § 265.02(4), was a violent felony at the time of that conviction in 2000 ( see People v. Walker, 81 N.Y.2d 661, 664–666, 603 N.Y.S.2d 280, 623 N.E.2d 1 [1993] ). Moreover, the same crime has been recodified as the more serious offense of criminal possession of a weapon in the second degree (Penal Law § 265.03[3]; see People v. Jones, 22 N.Y.3d 53, 58, 977 N.Y.S.2d 739, 999 N.E.2d 1184 [2013] ), which “remained a violent felony offense at the time of defendant's second violent felony offender adjudication” (People v. Bowens, 120 A.D.3d 1148, 1149, 992 N.Y.S.2d 881 [1st Dept.2014]; see also People v. Morse, 62 N.Y.2d 205, 217, 476 N.Y.S.2d 505, 465 N.E.2d 12 [1984]; see also Penal Law § 70.02[1] [b] ). Defendant's ex post facto argument is improperly raised for the first time in his reply brief, and is without merit in any event. FRIEDMAN, J.P., ACOSTA, SAXE, MANZANET–DANIELS, GISCHE, JJ., concur.