People v. Fotiathis

198 A.D.2d 896, 604 N.Y.S.2d 447, 1993 N.Y. App. Div. LEXIS 11551

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1993
• Status: Published

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Steuben County Court for further proceedings in accordance with the following Memorandum: Defendant pleaded guilty to attempted burglary in the third degree and, in accordance with the plea bargain, was sentenced to an indeterminate term of incarceration of IVz to 3 years. On appeal, he contends that the court erred in sentencing him as a second felony offender because the People failed to file a second felony offender statement pursuant to CPL 400.21. We agree. Under the circumstances of this case, the filing of a second felony offender statement before the imposition of sentence was mandatory (see, CPL 400.21 [1], [2]) and the failure to comply with that requirement renders the sentence invalid as a matter of law (see, People v Scarbrough, 66 NY2d 673, revg on dissent of Boomer, J., 105 AD2d 1107; People v Gilchrist, 152 AD2d 923). Therefore, we modify the judgment by vacating the sentence and we remit the matter to County Court for the filing of a second felony offender statement pursuant to CPL 400.21 prior to resentencing. (Appeal from Judgment of Steuben County Court, Scudder, J. — Attempted Burglary, 3rd Degree.) Present — Denman, P. J., Pine, Lawton, Doerr and Davis, JJ.