| People v Milon |
| 2014 NY Slip Op 00746 [114 AD3d 1130] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KevinMilon, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered September 4, 2012. The judgment convicted defendant, upon his plea of guilty,of manslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the sentence and as modified the judgment is affirmed and the matteris remitted to Erie County Court for the filing of a predicate felony offender statementand resentencing.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea ofguilty, of manslaughter in the first degree (Penal Law § 125.20 [1]). We agree withdefendant that the waiver of the right to appeal does not encompass his challenge to theseverity of the sentence because "[t]he plea colloquy fails to establish that defendantknowingly and intelligently waived [his] right to appeal the severity of [his] sentence"(People v Maracle, 19NY3d 925, 927 [2012]). We nevertheless reject defendant's contention that thesentence is unduly harsh and severe. We note, however, that the record reflects thatdefendant is a predicate felon and thus the People were required to file a predicate felonyoffender statement in accordance with CPL 400.21 and, if appropriate, County Court wasrequired to sentence defendant as a second felony offender (see People v Stubbs, 96 AD3d1448, 1450 [2012], lv denied 19 NY3d 1001 [2012]). Because we cannotpermit an illegal sentence to stand (see id.), we modify the judgment by vacatingthe sentence, and we remit the matter to County Court for the filing of a predicate felonyoffender statement and resentencing in accordance with the law (see id.).Present—Scudder, P.J., Smith, Centra, Carni and Whalen, JJ.