People v. Gines

284 A.D.2d 134, 725 N.Y.S.2d 846, 2001 N.Y. App. Div. LEXIS 5703

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 2001
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (Frank Torres, J.), rendered August 26, 1999, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of vacating the sentence and remanding for resentencing, and otherwise affirmed.

Since defendant controverted his persistent felony offender status and did not receive copies of his predicate violent felony offender statements until the day of sentencing, he was statutorily entitled to an adjournment of the hearing for at least two days upon his request (see, CPL 400.15 [6]; 400.16 [2]; People v Shabazz, 104 AD2d 776, lv denied 64 NY2d 654). In addition, although defendant’s predicate convictions were more than 10 years old, the statements were incomplete in that they did not set forth the date of commencement and the date of termination, as well as the place of imprisonment, for each period of incarceration as is required to toll the 10-year period after which a previous conviction may not be used for purposes of sentencing as a second or persistent violent felony offender (see, CPL 400.15 [2]; 400.16 [2]; Penal Law § 70.04 [1] [b] [iv]; § 70.08 [1]). To the extent that any of these issues were not properly preserved, we choose to review them in the interest of justice. Accordingly, defendant is entitled to resentencing with farther proceedings on his persistent violent felony offender status, including the filing by the People of proper predicate statements (see, People v Sailor, 65 NY2d 224, cert denied 474 US 982). Concur — Andrias, J. P., Lerner, Rubin, Buckley and Marlow, JJ.