| People v Warde |
| 2007 NY Slip Op 09438 [45 AD3d 879] |
| November 27, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Andrew Warde, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Holdman,J.), rendered September 22, 2006, convicting him of criminal possession of a weapon in thirddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed; as somodified, the judgment is affirmed, and the matter is remitted to the Supreme Court, KingsCounty, for resentencing.
The form signed by the defendant, which purported to constitute a waiver of his right toappeal, was insufficient to establish that he knowingly, intelligently, and voluntarily waived hisright to appeal from his sentence on the ground of excessiveness (see People v Hurd, 44 AD3d 791[2007]; People v Hale, 30 AD3d613, 614 [2006]). We thus consider the defendant's contention that the sentence imposedwas excessive.
The excessiveness of the defendant's sentence involves several issues, including whether anenhanced sentence was properly imposed (see People v Brown, 265 AD2d 486 [1999]).In order to impose an enhanced sentence based upon a postplea arrest, the sentencing court mustconduct an inquiry of "sufficient depth . . . so that the court can besatisfied—not of defendant's guilt of the new criminal charge, but of the existence of alegitimate basis for the arrest on that charge" (People v Outley, 80 NY2d 702, 713[1993]). The fact that the defendant was indicted for a charge underlying the postplea arrest isprima facie evidence that there is a legitimate basis for the arrest on that charge (see People v Ricketts, 27 AD3d488, 489 [2006]; People v Coleman, 266 AD2d 227 [1999]). However, thedefendant should still be afforded "the opportunity to speak" and present additional informationwith respect to the postplea arrest if he or she chooses to do so (Coleman v Rick, 281 FSupp 2d 549, 558-559 [2003]; see People v Maietta, 80 NY2d 702, 714 [1993];People v Henriques, 291 AD2d 290, 291 [2002]; People v Coleman, 266 AD2d227 [1999]; People v Santana, 254 AD2d 152 [1998]). In the instant case, the defendantattempted to speak but was not afforded that opportunity. Accordingly, we vacate the sentenceimposed and remit the matter to the Supreme Court, Kings County, to provide the defendant withan opportunity to speak and for resentencing thereafter.
At sentencing, the defendant did not raise the question of youthful offender treatment,however, and therefore that issue is unpreserved for appellate review (see People v Miles,244 AD2d 433, 434 [1997]).
In light of our determination, we need not reach the question of whether the duration of thesentence imposed was excessive. Santucci, J.P., Goldstein, Dillon and Angiolillo, JJ., concur.