PEOPLE, res, v. RICHARD HEISLER, def-ap

4126-4128. PEOPLE, res, v. RICHARD HEISLER, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for res — Judgment of resentence, Supreme Court, New York County (Robert M. Stolz, J.), rendered July 24, 2015, resentencing defendant, as a second violent felony offender, to an aggregate term of 22 years, and bringing up for review an order (same date, court and Justice), which granted the People's CPL 440.40 motion to set aside a resentence of the same court and Justice, rendered February 6, 2015, as amended March 2, 2015, resentencing defendant, as a first felony offender, to an aggregate term of 22 years upon a judgment of the same court (Rena K. Uviller, J.), rendered November 10, 2011, convicting defendant, upon his plea of guilty, of kidnapping in the second degree and criminal sexual act in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 22 years to life, unanimously affirmed. Appeals from the original judgment of conviction and the intervening judgments of resentence unanimously dismissed as academic.

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4126-4128. PEOPLE, res, v. RICHARD HEISLER, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Abigail Everett of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for res — Judgment of resentence, Supreme Court, New York County (Robert M. Stolz, J.), rendered July 24, 2015, resentencing defendant, as a second violent felony offender, to an aggregate term of 22 years, and bringing up for review an order (same date, court and Justice), which granted the People’s CPL 440.40 motion to set aside a resentence of the same court and Justice, rendered February 6, 2015, as amended March 2, 2015, resentencing defendant, as a first felony offender, to an aggregate term of 22 years upon a judgment of the same court (Rena K. Uviller, J.), rendered November 10, 2011, convicting defendant, upon his plea of guilty, of kidnapping in the second degree and criminal sexual act in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 22 years to life, unanimously affirmed. Appeals from the original judgment of conviction and the intervening judgments of resentence unanimously dismissed as academic.

The court correctly resentenced defendant as a second violent felony offender. The court’s earlier determination, in vacating defendant’s persistent violent felony offender adjudication, that defendant should be sentenced as a first felony offender (nonpredicate) had no collateral estoppel effect on the People’s valid CPL 440.40 challenge to the legality of the nonpredicate sentence. We also find that defendant did not meet his burden of establishing that his predicate violent felony conviction was unconstitutionally obtained.

PEOPLE, res, v. RICHARD HEISLER, def-ap

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