| People v Santiago |
| 2012 NY Slip Op 00029 [91 AD3d 438] |
| Jnury 5, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Benjamin Santiago, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), forrespondent.
Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered on or about January14, 2010, which denied defendant's CPL 440.20 motion to set aside a sentence of the same court(James A. Yates, J.), imposed June 26, 2007, as amended August 24, 2007, unanimouslyreversed, the motion granted, defendants' second violent felony offender adjudication andsentence vacated, and the matter remanded for resentencing.
On February 27, 2007, defendant was convicted, after a jury trial, of robbery in the firstdegree, robbery in the third degree and criminal possession of a weapon in the third degree. OnJune 26, 2007, he was adjudicated a second violent felony offender, and sentenced to 13 years inprison on the robbery in the first degree count, with concurrent time on the other charges, andfive years of postrelease supervision.
On or about April 6, 2009, defendant moved to set aside his sentence pursuant to CPL 440.20on the ground that his 2004 predicate violent felony conviction was unconstitutionally obtainedbecause he was not advised during the plea allocution that the sentence would include a period ofpostrelease supervision (see People vCatu, 4 NY3d 242 [2005]). The trial court denied the motion as procedurally barredbecause defendant failed to appeal the 2004 conviction. We now reverse.
Defendant's failure to appeal the 2004 conviction did not constitute a forfeiture of his right toindependently challenge its constitutionality within the context of a predicate felony proceeding(see People v Johnson, 196 AD2d 408, 410 [1993], lv denied 82 NY2d 806[1993] ["Notwithstanding his failure to appeal from the 1985 conviction, defendant had anindependent statutory right to challenge its use as a predicate conviction on the ground it wasunconstitutionally obtained"]). Although the absence of an appeal may be a relevantconsideration in predicate felony offender proceedings, it is not an automatic bar to challengingthe constitutionality of a predicate conviction (see People v Abdus-Samad, 69 AD3d 516, 517 [2010], lvdenied 15 NY3d 746 [2010]).
The People argue that the CPL 440.20 motion must be denied on the ground that defendantwaived his right to challenge the 2004 conviction by failing to raise the argument at [*2]the appropriate time, which was the time of the 2007 second violentfelony offender adjudication (see CPL 400.15 [7] [b]; People v Odom, 63 AD3d 408 [2009], lv denied 13 NY3d798 [2009]). However, the People were required to preserve such an argument for review by thisCourt (see People v Chavis, 91 NY2d 500, 506 [1998]) and failed to do so. Before thetrial court, misapplying Odom, the People only argued that defendant was procedurallybarred from challenging the 2004 prior violent felony conviction by failing to appeal from thatconviction. The trial court relied solely on that ground to deny the motion and this Court iswithout authority to affirm an order based on an issue of law or fact that the trial court did nothear and determine against the appellant, and we cannot invoke an alternative ground foraffirmance (see CPL 470.15 [1]; People v Concepcion, 17 NY3d 192 [2011]; People vLaFontaine, 92 NY2d 470 [1998]). For the same reason, it is beyond our power to review thePeople's argument, also raised for the first time on appeal, that a Catu issue should notaffect the constitutionality, for predicate felony purposes, of defendant's 2004 conviction.Concur—Andrias, J.P., Saxe, Sweeny, Acosta and Manzanet-Daniels, JJ.