People v. Bush

74 A.D.2d 927, 426 N.Y.S.2d 92, 1980 N.Y. App. Div. LEXIS 10740

Opinion

Appeal by defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County, imposed May 13, 1977, upon his conviction of robbery in the second degree, upon his plea of guilty, the sentence being a term of imprisonment with a minimum of five years and maximum of 10 years (as a second felony offender). Sentence reversed, on the law, and case remitted to Criminal Term for resentencing. The record indicates that in the predicate felony information filed against the defendant at time of sentencing, the prosecutor listed, as defendant’s predicate felony conviction, an erroneous extract from the minutes of the court showing another person’s conviction for attempted grand larceny in the second degree in July, 1968. Although the sentencing court did refer to matter not contained in the felony information which undoubtedly established that defendant was a second felony offender, we believe the filing of the subject document in this instance, containing false information as to defendant’s prior criminal record, represents insufficient compliance with the meticulous safeguards mandated by CPL 400.21 (subds 2, 3). (See People v Owens, 58 AD2d 898; People v Crawford, 64 AD2d 612.) Mollen, P. J., Hopkins, Damiani and Titone, JJ., concur.