People v. Scarbrough

105 A.D.2d 1107, 482 N.Y.S.2d 197, 1984 N.Y. App. Div. LEXIS 21203

Opinions

Order affirmed. Memorandum: The court did not err in denying the People’s motion to resentence defendant as a second felony offender. The burden is on the People to file a predicate felony information “before sentence is imposed setting forth the date and place of each alleged predicate felony conviction” (CPL 400.21, subd 2). The People did not file a predicate felony information either at the time sentence was imposed or in support of their motion to vacate the sentence. The court properly sentenced defendant to two consecutive one-year terms of imprisonment in satisfaction of a plea of guilty to two class D felonies (Penal Law, § 70.00, subd 4). Inasmuch as that sentence was “in accordance with law,” the court is without authority to change it once the period of the sentence has commenced (CPL 430.10).

All concur, except Boomer, J., who dissents and votes to reverse, in the following memorandum.