| People v Fields |
| 2010 NY Slip Op 09409 [79 AD3d 1448] |
| December 23, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Charles M. Fields,Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), forrespondent.
Peters, J.P. Appeal from a judgment of the County Court of Essex County (Meyer, J.), renderedFebruary 20, 2007, convicting defendant upon his plea of guilty of the crime of criminal sale of acontrolled substance in the second degree.
In satisfaction of multiple indictments and other charges, defendant pleaded guilty to one count ofcriminal sale of a controlled substance in the second degree and waived his right to appeal. The Peopleand defendant jointly recommended that he be sentenced to a prison term of 12 years to be followedby postrelease supervision of five years, and the People further agreed not to request that he besentenced as a persistent felony offender. County Court imposed the recommended sentence, anddefendant now appeals.
Defendant claims that County Court improperly sentenced him as a second felony drug offender,and we agree. Initially, this argument implicates the legality of his sentence and, as such, survives hisappeal waiver (see People v Glynn, 72AD3d 1351, 1351-1352 [2010], lv denied 15 NY3d 773 [2010]; People v Mosley, 54 AD3d 1098,1099 [2008]). The record does not reflect that the People filed a predicate felony statement prior tosentencing (see CPL 400.21 [2]; Penal Law § 70.71 [4] [b]), and they concede thatdefendant did not have "an opportunity to be heard with respect to . . . predicatesentencing" (People v Anthony, 52AD3d 864, 865 [2008], lv denied 11 NY3d 733 [2008]). Indeed, defendant was notadvised during the plea proceedings [*2]or thereafter that he was to besentenced as a second felony drug offender, and County Court did not explicitly find him to be such anoffender or sentence him as such (see CPL 400.21 [4]). As the provisions of CPL 400.21were not substantially complied with, remittal is required so that defendant may be afforded adequatenotice and an opportunity to be heard regarding his prior convictions prior to resentencing (see People v Farrow, 69 AD3d 980,981 [2010]; People v Anthony, 52 AD3d at 865; People v Fields, 92 AD2d 749[1983]).
Defendant's assertion that his guilty plea was not knowingly, intelligently and voluntarily enteredgiven County Court's failure to correctly advise him of the maximum term of imprisonment he faced isunpreserved due to his failure to move to withdraw his plea or to vacate the judgment of conviction(see People v Mayers, 74 NY2d 931, 932 [1989]; People v Campbell, 66 AD3d 1059, 1060 [2009]), and "we decline totake corrective action in the interest of justice" (People v Anthony, 52 AD3d at 865; cf.People v Bryant, 180 AD2d 874, 875-876 [1992]).
Rose, Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the judgment is modified, on thelaw, by vacating the sentence imposed; matter remitted to the County Court of Essex County for furtherproceedings not inconsistent with this Court's decision; and, as so modified, affirmed.