People v. Acebedo

156 A.D.2d 369, 548 N.Y.S.2d 324, 1989 N.Y. App. Div. LEXIS 15437

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 4, 1989
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Dutchess County (King, J.), rendered December 18, 1987, convicting him of robbery in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Dutchess County, for a new second felony offender hearing and resentencing.

We agree with the defendant’s contention that the sentencing court erred at the second felony offender hearing, when, over the defendant’s objection, it admitted into evidence certificates of conviction from Florida which were not accompanied by the certification required by CPLR 4540 (c). This defect requires vacatur of the court’s adjudication of the defendant as a second felony offender and remittitur of the matter to the County Court, Dutchess County, for a new second felony hearing and resentencing (see, People v Hines, 90 AD2d 621; People v Gonzalez, 64 AD2d 534; People v Dugas, 35 AD2d 732). The People shall have the opportunity to overcome the technical defects of their proof at the new hearing (see, People v Hines, supra; People v Gonzalez, supra).

In reaching this result, we do not reach the question of whether the sentence imposed was excessive. Mollen, P. J., Bracken, Rubin, Sullivan and Rosenblatt, JJ., concur.