| People v Alcequier |
| 2007 NY Slip Op 06749 [43 AD3d 699] |
| September 18, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ramon Alcequier, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Bruce Allen, J.), rendered June6, 2006, resentencing defendant upon his conviction, after a jury trial, of criminal sale of acontrolled substance in the first degree and two counts of criminal sale of a controlled substancein the second degree, as a second drug felony offender, to concurrent terms of 12 years, six yearsand six years, respectively, unanimously affirmed.
In 2000, defendant was sentenced on the instant conviction to an aggregate term of 15 yearsto life. Although it is undisputed that defendant had been convicted of a drug felony in 1997, thePeople expressly declined to file a predicate felony statement at the 2000 sentencing, explainingthat the prior conviction would have no effect on defendant's aggregate sentence.
In 2006, defendant successfully moved for resentencing pursuant to the 2004 and 2005 DrugLaw Reform Acts (L 2004, ch 738; L 2005, ch 643). At resentencing, the People filed a predicatefelony statement based on the 1997 conviction. The court adjudicated defendant a second felonydrug offender and sentenced him to the minimum terms available for such an offender.
The court correctly concluded that it would be unlawful to sentence defendant as a firstfelony offender, and there is no merit to defendant's suggestion that the court had discretion to doso. Penal Law § 70.71 (3) (b) requires enhanced sentences for second felony drugoffenders who have been adjudicated as such "pursuant to the provisions of section 400.21 of thecriminal procedure law." The mandatory nature of these sentencing provisions was triggered bydefendant's 1997 conviction. CPL 400.21 (2) required the People to file a predicate felonystatement with the court prior to sentencing, and their failure to do so at the original sentencingproceeding is irrelevant (see People v Scarbrough, 66 NY2d 673 [1985], revg ondissenting mem of Boomer, J., 105 AD2d 1107, 1107-1109 [1984]; cf. People v Singleton, 40 AD3d502 [2007]). Defendant's request for resentencing placed the case in a procedural posturethat required the People to file a predicate felony statement (compare People v Medina, 35 AD3d 163 [2006], lv denied8 NY3d 925 [*2][2007] [untimely resentencing application byPeople]), and the court had no legal basis upon which to sentence defendant as a first felonyoffender. Concur—Andrias, J.P., Buckley, Catterson, Malone and Kavanagh, JJ.