| People v Favale |
| 2010 NY Slip Op 07781 [77 AD3d 970] |
| October 26, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Favale, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), forrespondent.
Appeal by the defendant, as limited by his brief, from an amended sentence of the CountyCourt, Suffolk County (Braslow, J.), rendered April 28, 2009, upon his conviction of attemptedcriminal possession of a controlled substance in the third degree and criminal possession of aweapon in the third degree, after his plea of guilty.
Ordered that the amended sentence is reversed, on the law, and the matter is remitted to theCounty Court, Suffolk County, for resentencing in accordance herewith.
While the defendant's contention that he was improperly adjudicated a second felonyoffender is unpreserved for appellate review (see CPL 470.05 [2]), we consider thematter in the exercise of our interest of justice jurisdiction (see People v Fusillo, 94AD2d 802 [1983]). The sentencing court adjudicated the defendant a second felony offender(see Penal Law § 70.06) absent any indication of compliance with the proceduralrequirements of CPL 400.21, or any showing that the defendant was given notice and anopportunity to be heard (see People v Bouyea, 64 NY2d 1140 [1985]; People vAlston, 289 AD2d 339 [2001]). Accordingly, the matter must be remitted to the CountyCourt, Suffolk County, for resentencing (see People v Hamdam, 58 AD3d 752 [2009]). Mastro, J.P., Florio,Dickerson, Belen and Lott, JJ., concur.