| People v Carrasquillo |
| 2012 NY Slip Op 04470 [96 AD3d 1369] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Luis F.Carrasquillo, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered May29, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal sale of acontrolled substance in the third 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 toOnondaga County Court for the filing of a predicate felony statement prior to resentencing.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminalsale of a controlled substance in the third degree (Penal Law § 220.39 [1]), defendantcontends that his sentence as a second felony drug offender is illegal because he was never giventhe opportunity to challenge the prior felony conviction. Here, although defendant admitted thathe had a prior felony conviction, the certificate of conviction does not reflect that defendant wassentenced as a second felony drug offender. The sentence therefore is illegal, and we modify thejudgment by vacating the sentence, and we remit the matter to County Court for the filing of apredicate felony statement pursuant to CPL 400.21 prior to resentencing (see People vScarbrough, 66 NY2d 673, 674 [1985], revg on dissenting op of Boomer, J., 105AD2d 1107, 1107-1109 [1984]; Peoplev Ruddy, 51 AD3d 1134, 1135 [2008], lv denied 12 NY3d 787 [2009]).Present—Centra, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.