People v. Bennett

83 A.D.2d 579, 441 N.Y.S.2d 991, 1981 N.Y. App. Div. LEXIS 14875

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered June 13, 1979, convicting him of robbery in the first degree and criminal possession of stolen property in the third degree, upon a jury verdict, and sentencing him as a “predicate felon”. Case remitted to Criminal Term to hear and report on defendant’s claim that his predicate felony conviction had been obtained in violation of his constitutional rights (see CPL 400.21, subd 7, par [b]), and appeal held in abeyance in the interim. Criminal Term is to file its report with all convenient speed. At sentence defendant claimed that his prior plea should have been to a misdemeanor rather than a felony, and he raised constitutional issues with regard thereto. There should have been further inquiry before his adjudication as a predicate felon. An immediate hearing will remedy this situation (see People v Valvano, 73 AD2d 653). Gibbons, J. P., Gulotta, Cohalan and Bracken, JJ., concur.