| People v Collier |
| 2010 NY Slip Op 08809 [79 AD3d 1162] |
| December 2, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Andre Collier,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Rose, J.P. Appeal, by permission, from an order of the County Court of Albany County (Breslin,J.), entered August 19, 2009, which denied defendant's motion pursuant to CPL 440.10 and 440.20 tovacate the judgment convicting him of the crime of robbery in the first degree (two counts) and to setaside the sentence, without a hearing.
In 2005, defendant was charged in an indictment with five counts of robbery in the first degree. Infull satisfaction thereof, he pleaded guilty to counts one and five and was sentenced, in accordance withthe negotiated plea agreement, to consecutive prison terms of 25 years and five years, respectively.Both sentences also included a five-year period of postrelease supervision. In 2006, the Department ofCorrectional Services informed County Court that the five-year sentence was statutorily impermissiblebecause Penal Law § 70.04 (3) (a) requires that a determinate sentence for a second violentfelony offender convicted of a class B felony be at least 10 years. Defendant has yet to be resentencedand, on his direct appeal in 2008, we found defendant's lone assertion—that the imposedsentences were harsh and excessive—to be precluded by his valid waiver of appeal, andaffirmed the judgment of conviction (People vCollier, 52 AD3d 1121, 1122 [2008], lv denied 11 NY3d 786 [2008]).
Subsequently, defendant moved pursuant to CPL article 440 to vacate the judgment of convictionand to set aside the sentence, arguing that he should be permitted to withdraw his plea [*2]because of the illegality of the sentence on count five of the indictment.County Court, noting that defendant had been sentenced as a second felony offender rather than as asecond violent felony offender, denied the motion without a hearing on the basis that defendant failed toraise the issue on his direct appeal. This appeal ensued.
The sentence imposed is illegal even if defendant is considered a second felony offender. Theminimum available prison term for a second felony offender sentenced for a class B violent felonyoffense is eight years (see Penal Law § 70.06 [6] [a]).[FN1]Further, a motion to set aside a sentence pursuant to CPL 440.20 is not barred by the failure to raisethe issue of illegality on the direct appeal (seePeople v McCants, 15 AD3d 892, 893 [2005]).[FN2]Inasmuch as an illegal sentence cannot stand, and "the entire sentence is 'part and parcel of the pleabargain,' it must be vacated in its entirety regardless of whether portions of the sentence are legal"(People v Sheils, 288 AD2d 504, 505 [2001], lv denied 97 NY2d 733 [2002],quoting People v Sellers, 222 AD2d 941 [1995]; see People v Ciccarelli, 32 AD3d 1175, 1176 [2006]; People vMartin, 278 AD2d 743, 744 [2000]). Accordingly, we remit to County Court to either resentencedefendant in a manner that ensures that he receives the benefit of his sentencing bargain or permit bothparties the opportunity to withdraw from the plea agreement (see People v Cameron, 83NY2d 838, 840 [1994]; People vWarren, 74 AD3d 1639, 1640 [2010]; see generally People v Selikoff, 35 NY2d227, 240-242 [1974]; People v Surdis,23 AD3d 841, 842-843 [2005], lv denied 6 NY3d 818 [2006]; People v Sheils,288 AD2d at 505-506).
Lahtinen, Stein, McCarthy and Garry, JJ., concur. Ordered that the order is modified, on the law,by vacating defendant's sentence; matter remitted to the County Court of Albany County for furtherproceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote 1: In any event, we note thatclassification as a second violent felony offender is mandatory (see CPL 400.15 [1], [2];People v Scarbrough, 66 NY2d 673, 674 [1985], revg on dissenting mem of Boomer,J., 105 AD2d 1107, 1107-1109 [1984]; People v Nix, 71 AD3d 1505, 1505-1506 [2010], lv denied 15NY3d 754 [2010]).
Footnote 2: To the extent that this Court's priordecisions may be read to preclude a CPL 440.20 motion where the illegality of the sentence could havebeen raised on a direct appeal (see People vPratt, 23 AD3d 770, 771 [2005], lv dismissed 6 NY3d 816 [2006]; People v O'Hanlon, 13 AD3d 718,719 [2004]; People v Pham, 287 AD2d 789, 790 [2001]), they should not be followed.