People v. Ferebee

98 A.D.2d 751, 469 N.Y.S.2d 461, 1983 N.Y. App. Div. LEXIS 21072

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1983
• Status: Published

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Demakos, J.), rendered March 4, 1982, convicting him of robbery in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence as a second felony offender. Judgment modified, on the law, by vacating the sentence imposed. As so modified, judgment affirmed, and the matter is remitted to Criminal Term for further proceedings consistent herewith. Before he was sentenced as a second felony offender, defendant claimed that his prior conviction, upon his plea of guilty, was unconstitutionally obtained because his guilty plea had been coerced in violation of his rights pursuant to Boykin v Alabama (395 US 238). Sentencing was adjourned for a hearing pursuant to CPL 400.21 (subd 7), and the prosecutor indicated that he would be producing at the hearing the plea minutes of the prior conviction. However, at the hearing, neither the plea nor the sentencing minutes were made available to the court! Therefore, defendant’s sentence as a second felony offender must be vacated and the matter remitted for a new hearing and resentencing. At that hearing, the People shall supply the court with the plea and sentencing minutes of defendant’s prior conviction (see People v Bennett, 83 AD2d 579;People v Valvano, 73 AD2d 653;People vDeBerry, 73 AD2d 652). Mollen, P. J., Weinstein, Brown and Boyers, JJ., concur.