People v. Chevere

17 A.D.3d 193, 792 N.Y.S.2d 330, 2005 N.Y. App. Div. LEXIS 3943

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 2005
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (William C. Donnino, J.), rendered October 8, 1999, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree, and sentencing him to concurrent terms of dVa to 9 years and 2 to 4 years, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the sentences and remanding for resentencing, and otherwise affirmed.

The People did not file a predicate felony statement and the court never adjudicated defendant a second felony offender or second violent felony offender. Under the circumstances of the case, we conclude that a remand for resentencing is warranted in the interest of justice (compare People v Bouyea, 64 NY2d 1140 [1985]). We note that there is an unresolved issue as to whether defendant is a second felony offender or second violent felony offender with respect to the weapon conviction, which should be addressed at the resentencing proceeding. Concur— Mazzarelli, J.P., Andrias, Friedman, Sweeny and Catterson, JJ.