People v. Thomas

113 A.D.2d 1029, 494 N.Y.S.2d 590, 1985 N.Y. App. Div. LEXIS 52682

Opinion

Judgment insofar as it imposes sentence, unanimously reversed, on the law, and otherwise judgment affirmed and matter remitted to Supreme Court, Onondaga County for resentencing. Memorandum: Defendant, who challenged the constitutionality of the court’s consideration of a prior felony conviction predating Penal Law § 70.06, was sentenced as a predicate felon in accordance with a plea bargain. It is conceded that the District Attorney failed to comply with CPL 400.21 (2) which provides that whenever it appears that a defendant may have previously been subjected to a predicate felony conviction, "a statement must be filed by the prosecutor before sentence is imposed setting forth the date and place of each alleged predicate felony conviction.” The sentencing court expressed uncertainty as to defendant’s status as a predicate felon and there is confusion in the record as to the date, place and nature of any prior felony conviction. In our view, the failure to provide defendant with this statement deprived him of an opportunity to controvert its allegations and to question the constitutionality of any prior felony conviction (CPL 400.21 [3], [7]). The People’s failure to file the statement cannot be considered harmless error (see, People v Bouyea, 64 NY2d 1140). (Appeal from judgment of Supreme Court, Onondaga County, Gorman, J.— attempted criminal sale of controlled substance, fifth degree.) Present—Hancock, Jr., J. P., Callahan, Doerr, Pine and Schnepp, JJ.