People v. Colon

114 A.D.2d 319, 494 N.Y.S.2d 113, 1985 N.Y. App. Div. LEXIS 52997

Opinion

Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered September 26, 1983, convicting defendant of criminal sale of a controlled substance in the fifth degree and sentencing him as a second felony offender to an indeterminate prison term of from 2 to 4 years, unanimously modified, on the law, to the extent of reversing the sentence and vacating the same, and except as thus modified, affirmed, and the matter is remanded for resentence.

Defendant pleaded guilty to criminal sale of a controlled substance in the fifth degree and was sentenced to the minimum permissible legal sentence, 2 to 4 years, on the understanding that he was a second felony offender. However, it is manifest on the record, and the People acknowledge, that the sentence was improper since there was no complete allocution of defendant pursuant to CPL 400.21. In moving to withdraw a prior guilty plea negotiated for a promised sentence of probation on the instant indictment, defense counsel made reference to the fact that the defendant might be a second felony offender. The defendant subsequently entered the plea which resulted in the judgment here on appeal. Yet, at sentencing on the subsequent plea the District Attorney failed to file a predicate felony information. (CPL 400.21 [2].) Nor did the court satisfy the statutory obligation to present the defendant with, and give him an opportunity to challenge, the prior felony conviction. (CPL 400.21 [3]; People v Traynor, 101 AD2d 898, 899; see also, People v Bouyea, 64 NY2d 1140, 1142.) Accordingly, we vacate the sentence and remand for resentence. Concur—Sandler, J. P., Asch, Kassal and Rosenberger, JJ.