People v. Artis

236 A.D.2d 549, 654 N.Y.S.2d 630, 1997 N.Y. App. Div. LEXIS 1348

Opinion

—Appeal by the defendant from a judgment of the County Court, Rockland County (Nelson, J.), rendered December 12, 1995, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence as a second felony offender.

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, Rock-land County, for a new second felony offender adjudication and for resentencing.

We have examined the record and find that the defendant’s plea of guilty was knowingly and voluntarily entered (see, People v Harris, 61 NY2d 9).

At the plea proceeding, the defendant admitted that he had a prior felony conviction in New Jersey and he withdrew any constitutional challenges with respect thereto. However, at sentencing, the People filed a predicate felony statement setting forth only a prior New York felony conviction. The defendant raised constitutional objections to consideration of this New York conviction. As the People concede, the sentencing court’s adjudication of the defendant as a second felony offender without, a hearing did not comply with CPL 400.21 and the case must be remitted for resentencing, prior to which the People may, if they be so advised, file an amended predicate felony statement listing both the New York and New Jersey convictions. Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.