| People v Johnson |
| 2015 NY Slip Op 00062 [124 AD3d 1318] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAndrew J. Johnson, Appellant. |
David J. Farrugia, Public Defender, Lockport (Mary-jean Bowman of counsel), fordefendant-appellant.
Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Sara S. Farkas, J.), renderedSeptember 5, 2013. The judgment convicted defendant, upon his plea of guilty, ofburglary in the third 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 Niagara County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon hisplea of guilty of burglary in the third degree (Penal Law § 140.20).Defendant's sole contention on appeal is that the sentence is unduly harsh and severe, andthat contention is encompassed by defendant's valid waiver of the right to appeal (see People v Lopez, 6 NY3d248, 256 [2006]). We note, however, that the proper sentencing procedures pursuantto CPL 400.21 were not followed and thus that the sentence may be illegal. County Courtsentenced defendant as a first felony offender, but, " '[w]hen it became apparentat sentencing that defendant had a prior felony conviction, the People were required tofile a second felony offender statement in accordance with CPL 400.21 and, ifappropriate, the court was then required to sentence defendant as a second felonyoffender' " (People vStubbs, 96 AD3d 1448, 1450 [2012], lv denied 19 NY3d 1001 [2012])."[I]t is illegal to sentence a known predicate felon as a first offender" (id.[internal quotation marks omitted]) and, inasmuch as we cannot allow an illegal sentenceto stand, we modify the judgment by vacating the sentence imposed and we remit thematter to County Court for the filing of a predicate felony offender statement andresentencing in accordance with the law (see id.). Present—Scudder, P.J.,Centra, Fahey, Lindley and DeJoseph, JJ.