People v. Fields

92 A.D.2d 749, 461 N.Y.S.2d 133, 1983 N.Y. App. Div. LEXIS 17077

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1983
• Status: Published

Opinion

— Judgment unanimously modified, on the law, to vacate sentence and, as modified, affirmed and defendant remanded to Supreme Court, Erie County, for resentencing, in accordance with the following memorandum: Defendant entered a plea of guilty to burglary in the third degree in exchange for a promise that he would not be sentenced as a persistent felony offender. Although the People advised that they would file a second felony offender statement, it does not appear that one was filed. When defendant appeared for sentence, the court did not refer to his status as a predicate felon or afford him the opportunity to controvert the prior conviction (CPL 400.21; and see People v Corey, 88 AD2d 560; People v Anderson, 60 AD2d 632); nevertheless, it sentenced him to an indeterminate term of SVa to 7 years, a permissible sentence only if defendant had been adjudicated a predicate felon (Penal Law, § 70.06). Defendant’s request to withdraw his plea was properly denied. His claim that he was subjected to family pressure and his unsupported claim of innocence despite his unequivocal prior admissions were insufficient to require the court to permit withdrawal of the plea. (See People v Mangini, 82 AD2d 940; People v Cooke, 61 AD2d 1060.) (Appeal from judgment of Supreme Court, Erie County, Sedita, J. — burglary, third degree.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and Moule, JJ.