| People v Mosley |
| 2008 NY Slip Op 06896 [54 AD3d 1098] |
| September 18, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Manuel K.Mosley, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Sophie A. Jensen of counsel), forrespondent.
Peters, J. Appeal from a judgment of the County Court of Warren County (Hall, J.), renderedJanuary 10, 2007, convicting defendant upon his plea of guilty of the crimes of criminal sale of acontrolled substance in the third degree and attempted assault in the second degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the third degree andattempted assault in the second degree and waived his right to appeal. County Court thereaftersentenced him to 11 years in prison and three years of postrelease supervision for the criminalsale conviction and 2 to 4 years in prison for the attempted assault conviction, with the prisonterms ordered to run concurrently. Defendant now appeals.
Defendant contends that County Court's pronouncement of him as a second felony offenderwas improper because there was not compliance with CPL 400.21. We preliminarily note that,inasmuch as such a claim implicates the legality of defendant's sentence, his waiver of appealdoes not preclude him from raising it (see People v Ladson, 30 AD3d 836, 837 [2006]). Turning to themerits, CPL 400.21 (2) requires that a predicate felony offender statement be filed beforethe sentence is imposed. In this case, however, the statement was not filed and defendant was notafforded an opportunity to be heard on the matter until after he had already beensentenced. Moreover, defendant never agreed to be sentenced as a second felony offender duringthe plea allocution and therefore cannot be said to have waived his rights under CPL 400.21 (see [*2]People v Anthony, 52 AD3d 864, 865 [2008]). Similarly,defendant's failure to controvert the statement after his sentence had already been imposed doesnot validate or otherwise constitute a waiver of the sentence (see id.). Accordingly,because the mandates of CPL 400.21 were not satisfied, defendant's sentence is invalid as amatter of law (see id.). We must, therefore, remit this matter to County Court forresentencing.
In view of our disposition, defendant's assertion that his sentence is harsh and excessive isacademic.
Cardona, P.J., Rose, Kavanagh and Stein, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court of WarrenCounty for further proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.