People v. Humphries

144 A.D.2d 385, 533 N.Y.S.2d 905, 1988 N.Y. App. Div. LEXIS 11208

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1988
• Status: Published

Opinion

Appeal by the defendant, as limited by his motion, from two resentences of the Supreme Court, Kings County (Maraño, J.), both imposed August 19, 1983, upon his conviction of criminal possession of a weapon in the third degree under indictment No. 3952/82 and attempted criminal possession of a weapon in the second degree under indictment No. 3656/80, upon his pleas of guilty, the resentences being two concurrent indeterminate terms of 2 Vi to 5 years’ imprisonment.

Ordered that the resentences are reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for a hearing and determination regarding the defendant’s status as a second violent felony offender and for resentencing.

Before the imposition of the resentences herein, the defendant challenged the validity of his prior felony conviction on the ground of ineffective assistance of counsel. As conceded by the People, the defendant’s allegation constitutes a constitutional challenge. Such a challenge may be raised for the first time even at a second violent felony offender hearing. Thus, an evidentiary hearing is warranted (see, People v Ordine, 130 AD2d 518, 519; CPL 400.15 [7] [b]). Mollen, P. J., Bracken, Weinstein and Harwood, JJ., concur.