| People v Farrow |
| 2010 NY Slip Op 00023 [69 AD3d 980] |
| January 7, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph M.Farrow, Appellant. |
—[*1] Gerald A. Keene, District Attorney, Owego (Adam R. Schumacher of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Tioga County (Sgueglia, J.),rendered August 15, 2008, convicting defendant upon his plea of guilty to the crime of attemptedrobbery in the second degree.
Defendant pleaded guilty to the charge of attempted robbery in the second degree and wasthereafter sentenced, as a second felony offender, to three years in prison with five years ofpostrelease supervision. Defendant's sole contention on this appeal is that he was improperlysentenced as a second felony offender and, thus, the maximum postrelease supervision that hecould have received was three years.
We agree. The record demonstrates that there was no discussion of defendant's second felonyoffender status during his plea hearing. Notably, at sentencing, the People stated their agreementwith defendant that the maximum term of postrelease supervision available was three years.After defendant was given the opportunity to make a brief statement, County Court inquired ofdefendant whether he had been previously convicted of criminal contempt, a class E felony, anddefendant answered in the affirmative. Without further discussion, the court announced it wassentencing defendant as a second felony offender and promptly adjourned. Because we find thatCounty Court abused its discretion in so doing, we now modify.[*2]
While the People contend that there was substantialcompliance with CPL 400.21, which sets out the procedure for determining whether a defendantis to be sentenced as a second felony offender, we find that defendant did not receive theadequate notice and opportunity to be heard with respect to his prior conviction that the statutecontemplates (see People v Ruffin,42 AD3d 582 [2007], lv denied 9 NY3d 881 [2007]; People v Chrysler, 260AD2d 945, 945 [1999]). Defendant did not enter his guilty plea with the understanding that hewould be sentenced as a second felony offender (see People v Harris, 61 NY2d 9, 20[1983]; People v Atkinson, 58 AD3d 943, 944 [2009]; People v Chrysler, 260AD2d at 945), nor is it evident that he received a copy of the CPL 400.21 statement prior tosentencing (see People v Chrysler, 260 AD2d at 945-946; People v Ford, 157AD2d 992, 992-993 [1990], lv denied 75 NY2d 919 [1990]). In fact, based upon thePeople's assertion with regard to postrelease supervision at the sentencing hearing, it appears thatthe CPL 400.21 statement was not completed and filed until after the sentencing was complete.Thus, defendant was not given an opportunity to controvert the allegations contained in thestatement (see CPL 400.21 [3]; People v Atkinson, 58 AD3d at 944; People vChrysler, 260 AD2d at 945-946). As such, we find that County Court improperly sentenceddefendant as a predicate felon.
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the judgment is modified,on the law, by vacating the sentence imposed; matter remitted to the County Court of TiogaCounty for further proceedings not inconsistent with this Court's decision; and, as so modified,affirmed.