People v. Marshall
Opinion
| People v Marshall |
| 2024 NY Slip Op 00199 |
| Decided on January 17, 2024 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on January 17, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
DEBORAH A. DOWLING
BARRY E. WARHIT
LAURENCE L. LOVE, JJ.
2022-01826
(Ind. No. 9/21)
v
Dujuan Marshall, appellant.
Yasmin Daley Duncan, Brooklyn, NY, for appellant.
Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered January 24, 2022, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Dutchess County, for resentencing in accordance herewith.
As the People correctly concede, the County Court erred in sentencing the defendant as a second felony offender without adjudicating him as such in compliance with the procedural requirements of CPL 400.21, or any showing that the defendant was given notice and an opportunity to be heard (see People v Smith, 127 AD3d 790, 791; People v Puca, 106 AD3d 758, 758; People v Feder, 96 AD3d 970, 971). Contrary to the People's contention, the defendant's claim here is not subject to the rule of preservation because the court did not advise the defendant that he would be sentenced as a second felony offender and he had no opportunity to object to the deficiency of the proceeding (see People v Turner, 24 NY3d 254).
Accordingly, we remit the matter to the County Court, Dutchess County, for resentencing in accordance with the mandates of CPL 400.21.
BRATHWAITE NELSON, J.P., DOWLING, WARHIT and LOVE, JJ., concur.
ENTERDarrell M. Joseph
Acting Clerk of the Court
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