| People v Nix |
| 2010 NY Slip Op 02334 [71 AD3d 1505] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Evan Nix,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michelle L. Cianciosa of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered November 3, 2008. The judgment convicted defendant, upon a nonjury verdict, ofburglary in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence and as modified the judgment is affirmed, and the matter is remitted toSupreme Court, Erie County, for resentencing in accordance with the following memorandum:Defendant appeals from a judgment convicting him upon a nonjury verdict of burglary in thesecond degree (Penal Law § 140.25 [2]). We reject the contention of defendant that he wasdenied his right to effective assistance of counsel based on defense counsel's allegedshortcomings (see generally People vTurner, 5 NY3d 476, 479-481 [2005]; People v Baldi, 54 NY2d 137, 147[1981]).
We conclude, however, that Supreme Court erred in sentencing defendant as a second felonyoffender rather than as a second violent felony offender (see People vScarbrough, 66 NY2d 673, 674 [1985], revg on dissenting mem of Boomer,J., 105 AD2d 1107, 1107-1109 [1984]). Pursuant to CPL 400.15 (1), the procedures set forththerein "must be followed in any case where it appears that a defendant who stands convicted ofa violent felony offense . . . has previously been subjected to a predicate violentfelony conviction . . . and may be a second violent felony offender" (seeScarbrough, 66 NY2d at 674). The court's failure to follow the statutory mandate renders thesentence "invalid as a matter of law," and thus the sentence must be set aside (CPL 440.40 [1];see People v Motley [appeal No. 3], 56 AD3d 1158, 1159 [2008]). We therefore modifythe judgment by vacating the sentence, and we remit the matter to Supreme Court forresentencing in compliance with CPL 400.15. Present—Smith, J.P., Centra, Fahey andPine, JJ.