| People v Wimberly |
| 2011 NY Slip Op 05820 [86 AD3d 651] |
| July 7, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v DerylWimberly, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Peters, J.P. Appeal, by permission, from an order of the County Court of Albany County(Herrick, J.), entered February 23, 2010, which denied defendant's motion pursuant to CPL440.10 and 440.20 to, among other things, vacate the judgment convicting him of the crime ofattempted criminal sale of a controlled substance in the third degree, without a hearing.
In April 2008, defendant was indicted on two counts of criminal sale of a controlledsubstance in the third degree. In the course of plea negotiations, it came to light that defendanthad a prior conviction for the federal crime of possession of a firearm by a prohibited person, andhe was informed that, as a result, he could be sentenced, as a violent predicate offender, to aprison term of 15 years on each count of the indictment if found guilty. Subsequently, defendantpleaded guilty, as a second violent felony offender, to one count of attempted criminal sale of acontrolled substance in the third degree in exchange for a negotiated sentence of four years inprison followed by two years of postrelease supervision. Thereafter, having failed to appear forsentencing as originally scheduled, defendant was sentenced to a prison term of six years,followed by three years of postrelease supervision. In January 2010, defendant moved pursuant toCPL 440.10 to vacate the judgment of conviction or, in the alternative, to set aside the sentencepursuant to CPL 440.20. County Court denied defendant's motion without a hearing. [*2]He now appeals by permission.
We agree with defendant's contention that County Court erred in denying his motion withouta hearing. Initially, we reject the People's assertion that defendant is precluded from seeking tovacate his judgment of conviction through a CPL 440.10 motion as a result of his failure to raisesuch grounds on direct appeal. Defendant's primary claim is that he was denied the effectiveassistance of counsel due to counsel's failure to realize and point out his true sentencing status.Because this claim is based on matters outside of the record, a motion pursuant to CPL 440.10 isthe appropriate procedural vehicle to raise this challenge (see People v Mobley, 59 AD3d 741, 742 [2009], lv denied12 NY3d 856 [2009]; People vObert, 1 AD3d 631, 632 [2003], lv denied 2 NY3d 764 [2004]; People vReynolds, 309 AD2d 976, 976 [2003]; see generally People v Pendelton, 81 AD3d 1037, 1038-1039[2011]).
Here, the People and defense counsel conducted plea negotiations and entered into a pleaagreement, and County Court rendered a sentence, under the assumption that, based upon his2000 federal conviction, defendant was a violent predicate felon. However, the elements of 18USC § 922 (g) (8), the federal statute under which defendant was convicted, do not accordwith any felony under New York law, and the People have failed to enumerate a state penalstatute under which defendant could be considered a predicate felon (see Penal Law§ 70.06 [1] [b] [i]; People v Yancy, 86 NY2d 239, 247 [1995]; People vMuniz, 74 NY2d 464, 467-468 [1989]; People v Mosby, 78 AD3d 1371, 1374 [2010], lv denied 16NY3d 834 [2011]; People v Perron, 273 AD2d 549, 550 [2000]). Therefore, we find aquestion as to whether counsel provided inadequate legal assistance by failing to detect andcorrect the mistaken impression of defendant's sentencing status (see People v Thomson, 46 AD3d939, 940 [2007], lv denied 9 NY3d 1039 [2008]; People v Garcia, 19 AD3d 17, 20-21 [2005]). Moreover, weredefendant not subject to be sentenced as a violent predicate felon, his current sentence of sixyears in prison is illegal (see Penal Law § 70.70 [2] [a] [ii]). Under thesecircumstances, defendant raised an issue sufficient to require a hearing as to whether counsel'srepresentation was deficient and, if so, whether defendant was prejudiced thereby (see Peoplev Mobley, 59 AD3d at 742; People v Garcia, 19 AD3d at 18; People vReynolds, 309 AD2d at 977; People v Perron, 273 AD2d at 550; People vMiller, 144 AD2d 867, 868 [1988]).
Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is reversed, onthe law, and matter remitted to the County Court of Albany County for further proceedings notinconsistent with this Court's decision.