People v. Kitchings

258 A.D.2d 579, 682 N.Y.S.2d 894

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1999
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (George, J.), rendered November 16, 1995, convicting him of robbery in the second degree, grand larceny in the fourth degree, criminal possession of a weapon in the second degree, assault in the third degree (two counts), menacing in the second degree, coercion in the first degree, intimidating a witness in the third degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the sentences imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in compliance with CPL 400.21.

As properly conceded by the People, the court records do not indicate that the procedures set forth in CPL 400.21 for determining the defendant’s status as a second felony offender were complied with (see, People v Bressingham, 148 AD2d 463). Since the indeterminate sentences imposed by the Supreme Court in this case are legally permissible only in the event that the defendant is found to be a second felony offender, the sentences must be vacated and the case remitted for resentencing in accordance with CPL 400.21 (see, People v Marero, 208 AD2d 769; People v Leacock, 196 AD2d 663).

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Bracken, J. P., O’Brien, Joy and Florio, JJ., concur.