People v. Meadows

114 A.D.2d 1044, 495 N.Y.S.2d 484, 1985 N.Y. App. Div. LEXIS 54090

Opinion

— Appeal by defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Savarese, J.), imposed December 23, 1981, upon his plea of guilty to robbery in the second degree, the sentence being a term of imprisonment of 3 Vi to 7 years.

Sentence reversed, on the law, and case remitted to Criminal Term for further proceedings consistent herewith.

The sentencing minutes do not indicate compliance with CPL 400.21, i.e., a judicial finding of a prior predicate felony (see, People v Owens, 58 AD2d 898). The record does not disclose that defendant admitted the existence of a prior felony conviction, and the error was, therefore, not harmless (cf. People v Bouyea, 64 NY2d 1140).

Furthermore, the record of the plea proceedings discloses some confusion as to whether defendant was to be sentenced as a second or a first felony offender upon conviction of robbery in the second degree, a class C violent offense (see, Penal Law § 70.02 [1] [b]). While the court advised defendant that he faced a minimum of one half the maximum imposed, thus indicating that defendant would be sentenced as a second felony offender (see, Penal Law § 70.06 [4] [b]), the court also advised defendant of the maximum range applicable to a first felony offender (see, Penal Law § 70.02 [2] [a]; [3] [b]).

Accordingly, the question of whether a proper minimum sentence had been imposed should be reviewed upon resentencing. Mollen, P. J., Lazer, Mangano and Gibbons, JJ., concur.