| People v Nilsen |
| 2014 NY Slip Op 00690 [114 AD3d 706] |
| February 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Chris Nilsen, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Toomey, J.), rendered October 17, 2012, convicting him of robbery in the third degree(two counts), upon his plea of guilty, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed;as so modified, the judgment is affirmed, and the matter is remitted to the County Court,Suffolk County, for resentencing.
Contrary to the defendant's contention, the County Court did not improperly delegatethe appeal waiver allocution to the prosecutor (see People v Fowler, 111 AD3d 958 [2013]; People v Bethune, 91 AD3d966, 966-967 [2012]). Nevertheless, the defendant's purported waiver of the right toappeal was invalid (see People vBradshaw, 18 NY3d 257, 265 [2011]; People v Moyett, 7 NY3d 892, 892-893 [2006]; People v Lopez, 6 NY3d248, 256-257 [2006]), and thus does not preclude review of the defendant'scontentions on appeal.
However, the defendant's challenge to the factual sufficiency of his plea allocution isunpreserved for appellate review (see CPL 470.05 [2]; People v Lopez,71 NY2d 662, 665 [1988]; People v Pellegrino, 60 NY2d 636, 637 [1983]; People v Barrett, 105 AD3d862, 863 [2013]). Moreover, the "rare case" exception to the preservationrequirement does not apply here because the defendant's allocution did not clearly castsignificant doubt on his guilt, negate an essential element of the crime, or call intoquestion the voluntariness of the plea (People v Lopez, 71 NY2d at 666; seePeople v Barrett, 105 AD3d at 863). In any event, the plea allocution was factuallysufficient (see People vGoldstein, 12 NY3d 295, 301 [2009]; People v Seeber, 4 NY3d 780, 781 [2005]).
As the People correctly concede, they failed to file a predicate felony statementbefore sentence was imposed as required by CPL 400.21 (2), and this error was notharmless (see People v Bouyea, 64 NY2d 1140, 1142 [1985]; People vTatta, 177 AD2d 674, 675 [1991]). Accordingly, we vacate the sentence imposed,and remit the matter to the County Court, Suffolk County, for resentencing. We note thatthe plea minutes in this case do not indicate that the plea of guilty was negotiated withterms that included restitution. Rivera, J.P., Dickerson, Cohen and Hinds-Radix, JJ.,concur.