People v. Nolley

233 A.D.2d 925, 649 N.Y.S.2d 565, 1996 N.Y. App. Div. LEXIS 13426

Opinion

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing in accordance with the following Memorandum: Defendant appeals from a judgment convicting her of two counts each of forgery in the second degree and petit larceny and sentencing her, as a second felony offender, to a term of incarceration of 2 to 4 years. Defendant contends that the petit larceny convictions must be reversed as a result of Supreme Court’s failure to instruct the jury on the elements of larceny by false pretenses; that the court abused its discretion in its Sandoval ruling; and that the court erred in failing to afford defendant a hearing before sentencing her as a second felony offender.

The court erred in denying defendant’s request for a hearing on the constitutionality of the predicate conviction, which defendant explicitly challenged on the ground of ineffective assistance of counsel (see, CPL 400.21 [3], [5], [7] [b]). In the context of a second felony offender determination, "[it] has been held that a defendant is entitled to a hearing to explore the issue of ineffective legal representation when he attacks his conviction as unconstitutional on that basis” (People v Case, 173 AD2d 892, 895, citing People v Longboat, 154 AD2d 916; and People v Allen, 135 AD2d 1034; see also, People v Wright, 119 AD2d 973, 974, lv denied 67 NY2d 1058; People v James, 109 AD2d 1095). We therefore modify the judgment by vacating the sentence imposed on the two counts of forgery in the second degree, and we remit the matter to Supreme Court for resentencing on those counts.

We have considered defendant’s remaining contentions and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Erie County, Sprague, J.—Forgery, 2nd Degree.) Present—Denman, P. J., Lawton, Fallon, Wesley and Balio, JJ.