People v. Williams

201 A.D.2d 289, 607 N.Y.S.2d 29, 1994 N.Y. App. Div. LEXIS 845

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1994
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered May 6, 1992, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a term of from 3 years to life, unanimously modified, on the law, to the extent of vacating the sentence and remanding the matter for resentencing following the filing by the District Attorney of a statement pursuant to CPL 400.16 (persistent violent felony offender), and otherwise affirmed.

Defendant argues, and the People concede, that he was not properly sentenced. The prosecutor never filed a predicate violent felony conviction statement and the court never provided defendant an opportunity to review and challenge the statement, as required by CPL 400.16, before a defendant may be determined to be a persistent violent felony offender.

Defendant is in error, however, when he argues that his sentence should be vacated and the case remanded so that he can be sentenced as a first felony offender. Instead, as the People also concede, the case must be remanded so that defendant can be properly sentenced as a persistent violent felony offender upon the filing of a predicate violent felony conviction statement and inquiry by the court (People v Hemphill, 129 AD2d 460). Concur — Carro, J. P., Ellerin, Rubin, Nardelli and Tom, JJ.