| People v Hamilton |
| 2008 NY Slip Op 02234 [49 AD3d 1163] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v David B.Hamilton, Appellant. |
—[*1] Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered July 5,2006. The judgment convicted defendant, upon his plea of guilty, of attempted burglary in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as a matterof discretion in the interest of justice and on the law by vacating the sentence and as modified thejudgment is affirmed, and the matter is remitted to Erie County Court for further proceedings inaccordance with the following memorandum: On appeal from a judgment convicting him uponhis plea of guilty of attempted burglary in the second degree (Penal Law §§ 110.00,140.25 [2]), defendant contends that County Court erred in sentencing him as a persistent violentfelony offender. We note at the outset that the contention of defendant is encompassed by hiswaiver of the right to appeal (seegenerally People v Rodriguez-Ortiz, 23 AD3d 204 [2005], lv denied 6 NY3d817 [2006]; People v Figueroa, 13AD3d 163 [2004], lv denied 4 NY3d 798 [2005]), which he has not challenged onappeal. Nevertheless, we conclude that defendant's waiver of the right to appeal is invalidinasmuch as the court's minimal inquiry was "insufficient to establish that the court 'engage[d]the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was aknowing and voluntary choice' " (People v Brown, 296 AD2d 860 [2002], lvdenied 98 NY2d 767 [2002]). We further note that, although defendant preserved for ourreview only one of the two grounds raised on appeal in support of his contention, i.e., that hisprior convictions would not qualify as violent felony offenses under New York law, wenevertheless exercise our power to consider the further ground for his contention as a matter ofdiscretion in the interest of justice (see CPL 470.15 [6] [a]).
As the People correctly concede, defendant's contention has merit. The sentences for theprior convictions were beyond the 10-year time limit, and the court failed to make a finding thatthe tolling provision applied (see Penal Law § 70.04 [1] [b] [v]). In addition, thePeople failed to establish the periods during which defendant was incarcerated (see People vGines, 284 AD2d 134 [2001]), and the persistent violent felony offender information failedto list the applicable sentences for tolling purposes (see CPL 400.15 [2]; 400.16 [2]).Finally, we agree with defendant that the court failed to determine whether his convictions inother jurisdictions qualify as violent felony offenses under New York law (see generallyPeople v Muniz, 74 NY2d 464, 467-470 [1989]).[*2]We therefore modify the judgment by vacating thesentence. We note that the sentence was imposed following defendant's plea of guilty to asuperior court information upon a waiver of indictment, and the People conditioned theiragreement to that waiver upon the court's imposition of the agreed-upon sentence. Thus, we remitthe matter to County Court to resentence defendant or to "entertain a motion by the People,should the People be so disposed, to vacate the plea and set aside the conviction in its entirety"(People v Irwin, 166 AD2d 924, 925 [1990], citing People v Farrar, 52 NY2d302, 307-308 [1981]). Further, should the People be so disposed, they may withdraw theirconsent to the waiver of indictment (see CPL 195.10 [1] [c]; People v Terry, 152AD2d 822, 823 [1989]). Present—Smith, J.P., Lunn, Peradotto, Green and Pine, JJ.