| People v Mitchell |
| 2010 NY Slip Op 00542 [69 AD3d 883] |
| January 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Layshawn Mitchell, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JohnnetteTraill, and Suzanne H. Sullivan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.),rendered November 13, 2006, convicting him of attempted sodomy in the first degree, upon hisplea 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, QueensCounty, for resentencing in accordance herewith.
The defendant's contention that his plea was not voluntary because it was coerced isunpreserved for appellate review, since he did not move to withdraw his plea on that basis(see People v Clarke, 93 NY2d 904, 906 [1999]; People v Lopez, 71 NY2d 662,665-666 [1988]; People v Bolton,63 AD3d 1087 [2009], lv denied 13 NY3d 834 [2009]; People v Antoine, 59 AD3d 560[2009]). In any event, his plea of guilty was knowingly, voluntarily, and intelligently entered(see People v Garcia, 92 NY2d 869, 870-871 [1998]; People v Harris, 61 NY2d9, 17 [1983]).
However, on the record before us, it is not clear whether the court sentenced the defendant asa persistent violent felony offender (see Penal Law § 70.08), or as a persistentfelony offender (see Penal Law § 70.10). Accordingly, we vacate the sentence andremit the matter to the Supreme Court, Queens County, for resentencing, including adetermination and adjudication of the defendant's status under article 400 of the CriminalProcedure Law.
In light of our determination, we do not reach the defendant's remaining contention raised inhis supplemental pro se brief. Rivera, J.P., Miller, Leventhal and Chambers, JJ., concur.