| People v Cole |
| 2006 NYSlipOp 05479 |
| July 7, 2006 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James Cole, Jr., Appellant. |
—[*1]
Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered August 19, 2004. The judgment convicted defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for resentencing in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fifth degree (Penal Law §§ 110.00, 220.06 [5]). As the People correctly concede, Supreme Court erred in sentencing defendant as a second felony offender because the court failed to comply with the requisite procedures pursuant to CPL 400.21 (3). Defendant was not afforded the opportunity to controvert the prior felony conviction, and he did not acknowledge the prior felony conviction during the proceedings (see People v Coffie, 272 AD2d 870 [2000]). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for resentencing in compliance with the procedures set forth in CPL 400.21 (3). Present—Pigott, Jr., P.J., Hurlbutt, Martoche, Smith and Green, JJ.