People v Ruddy

2008 NY Slip Op 04230 [51 AD3d 1134]

May 8, 2008

Appellate Division, Third Department

As corrected through Wednesday, July 16, 2008

The People of the State of New York, Respondent, v Aaron P.Ruddy, Appellant.

—[*1]Robert M. Cohen, Ballston Lake, for appellant.

James A. Murphy III, District Attorney, Ballston Spa (Nicholas Tishler of counsel), forrespondent.

Peters, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered May 15, 2006, which revoked defendant's probation and imposed a sentence ofimprisonment.

In July 2005, in full satisfaction of a two-count indictment and other pending charges,defendant pleaded guilty to the crime of burglary in the third degree, a class D felony, andreceived an agreed-upon sentence of time served and five years of probation. The terms of theplea included defendant's compliance with the terms and conditions of the Saratoga County DrugTreatment Court program. County Court specifically advised defendant that, in the event hefailed to comply with the conditions of the plea, he would be resentenced to a prison term of21/3 to 7 years. Thereafter, defendant was charged with and admitted to twiceviolating the terms of the Drug Treatment agreement. He was resentenced in May 2006 to a termof imprisonment in accordance with the terms of the July 2005 plea agreement and it was furtherrecommended that he be allowed to participate in a shock incarceration program. Upondefendant's application for participation in the program, he was found ineligible based upon aJuly 1996 felony conviction in Colorado. Defendant now appeals the judgment revoking hisprobation and resentence, claiming that such sentence is illegal.

At the outset, although defendant challenges the propriety of the original sentence imposed inJuly 2005, the record contains no indication that defendant ever appealed from the [*2]original judgment of conviction. As such, any questions regardingthe original conviction and sentence are not properly before us on this appeal, and we mayconsider only the propriety of defendant's resentencing (see CPL 450.30 [3]; People vDabbs, 178 AD2d 848, 848-849 [1991], lv denied 79 NY2d 946 [1992]; see alsoPeople v Brown, 307 AD2d 759, 759 [2003]).

With respect to the May 2006 resentence, we agree that such sentence is invalid as a matterof law due to the People's failure to file a predicate felony statement regarding defendant'sColorado felony conviction prior to resentencing (see Penal Law § 70.06 [1] [b][i], [iv]; CPL 400.21 [2]; People v Scarbrough, 66 NY2d 673, 674 [1985]; People vMay, 180 AD2d 974, 974 [1992]). The record reflects that the People and County Court wereaware of the prior Colorado felony conviction prior to the original sentencing in July 2005.Moreover, the May 2006 presentence report contains this information and was available to boththe People and County Court at the time of resentencing, at which time the People could havetimely moved to set aside the original sentence and complied with the filing requirement(see CPL 440.40 [1]; People v Holley, 168 AD2d 992, 992 [1990]). Under thesecircumstances, the failure to comply with the mandatory filing requirements of CPL 400.21 (2)renders defendant's May 2006 sentence invalid as a matter of law and, consequently, the sentencemust be vacated and the case remitted to County Court for the filing of a predicate felonystatement and resentencing (see People v Scarbrough, 66 NY2d at 674; People vMay, 180 AD2d at 974; see alsoPeople v Adams, 45 AD3d 1346, 1347 [2007]).

Upon remittal, County Court may not impose the agreed-upon prison sentence of21/3 to 7 years in the event that defendant is proven to be a second felony offender,as such sentence would be illegal (see Penal Law § 70.06 [4] [b]).^[FN*] Rather, County Court may either permit defendant to withdraw his plea or ensure that defendantreceives the benefit of his bargain by imposing a sentence with a minimum term of no greaterthan 21/3 years (seePeople v Surdis, 23 AD3d 841, 842-843 [2005], lv denied 6 NY3d 818 [2006];People v Sheils, 288 AD2d 504, 505-506 [2001], lv denied 97 NY2d 733 [2002];see generally People v Selikoff, 35 NY2d 227, 240-242 [1974]).

Mercure, J.P., Kane and Kavanagh, JJ., concur. Ordered that judgment is modified, on thelaw, by vacating the sentence imposed; matter remitted to the County Court of Saratoga Countyfor further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

Footnote *: Penal Law § 70.06 (4) (b)provides that, for a second felony offender convicted of a class D felony, the minimum termimposed must be one half of the maximum.