People v. Brown

67 A.D.2d 949, 413 N.Y.S.2d 218, 1979 N.Y. App. Div. LEXIS 10727

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 22, 1978, convicting him of grand larceny in the third degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence as a second felony offender. The appeal also brings up for review a denial of defendant’s motion, inter alia, to controvert the People’s statement that the defendant "has been subjected to a predicate felony conviction” for the purpose of being sentenced as a second felony offender. Judgment modified, on the law, by vacating the sentence imposed. As so modified, judgment affirmed and case remitted to the Supreme Court, Kings County, for resentencing in accordance herewith. We find that defendant’s 1971 felony conviction should not be used as a predicate felony for sentencing purposes in the instant case (see CPL 400.21, subd 7, par [b]). The 1971 plea minutes reveal that defendant’s knowledge of the consequences of and alternatives to the plea were not sufficiently explored by the trial court (see Matter of Chaipis v State Liq. Auth., 44 NY2d 57, 63-64; cf. People v Coseia, 56 AD2d 851). Accordingly, the defendant must be resentenced. We have considered the contentions raised by defendant with respect to errors at the trial in the instant case and find them to be without merit. Hopkins, J. P., Titone, Suozzi and Cohalan, JJ., concur.