
    (April 22, 2014)
    The People of the State of New York, Appellant, v Frank Ruiz, Also Known as Hector Cortez, Respondent.
    [986 NYS2d 330]
   Judgment of resentence, Supreme Court, Bronx County (William I. Mogulescu, J.), rendered April 26, 2012, resentencing defendant to concurrent terms of 8V2 years, and bringing up for review an order of the same court and Justice, entered on or about February 23, 2012, which granted defendant’s CPL 440.20 motion to set aside his the sentences as a second violent felony offender and directed that he be resentenced as a first violent felony offender, unanimously reversed, on the law, the judgment of resentence vacated, and the original sentence, rendered May 22, 2007, reinstated.

In view of the Court of Appeals’ recent decision in People v Boyer (22 NY3d 15 [2013]), defendant was not entitled to relief under 440.20 from his original sentencing as a second violent felony offender.

The decision and order of this Court entered herein on January 28, 2014 (113 AD3d 535 [2014]) is hereby recalled and vacated (see 2014 NY Slip Op 69944[U] [decided simultaneously herewith]). Concur — Gonzalez, PJ., Friedman, Moskowitz and Feinman, JJ.  