People v. Nalo

91 A.D.2d 957, 458 N.Y.S.2d 570, 1983 N.Y. App. Div. LEXIS 16241

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 1983
• Status: Published

Opinion

—Judgment of the Supreme Court, New York County (Moldow, J.), rendered on November 26, 1980, which following a jury trial, convicted the defendant of unlawful imprisonment in the first degree and criminal possession of a weapon in the second degree and sentenced him to consecutive terms of imprisonment of from 2 to 4 years and from 7V2 to 15 years, is unanimously modified, on the law, to the extent of reversing the sentence and remanding the matter for a hearing pursuant to CPL 400.15 and for resentence, and otherwise affirmed. On the date that the defendant was originally scheduled to be sentenced, he denied that he was a predicate felon and requested a hearing. Although the court at first directed that a hearing be held, it subsequently, and without conducting further proceedings, declared the defendant to be a violent predicate felon on the ground that a prior conviction had been affirmed by the Appellate Division, and, thus, there was no question of the validity of that conviction. However, CPL 400.15 mandates a hearing in all instances where a defendant who may be a second violent felony offender controverts an allegation contained in the District Attorney’s violent felony offender statement. In addition, the court improperly sentenced the defendant to consecutive sentences since the unlawful imprisonment and weapons possession charges arose out of a single incident or transaction, proof of one of which (possession of a weapon) constituted a material element of the other (unlawful imprisonment). Accordingly, the two sentences should have been imposed to run concurrently (Penal Law, § 70.25). Concur — Carro, J. P., Asch, Bloom, Milonas and Alexander, JJ.