| People v Soto |
| 2016 NY Slip Op 02920 [138 AD3d 533] |
| April 14, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v David Soto, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Molly Ryan of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), renderedMarch 13, 2014, convicting defendant, upon his plea of guilty, of assault in the seconddegree, criminal possession of a weapon in the third degree and attempted robbery in thethird degree, and sentencing him, as a second violent felony offender, to an aggregateterm of seven years, unanimously modified, on the law, to the extent of vacating thesecond violent felony offender adjudication and sentence and remanding forresentencing, including the filing by the People of a proper predicate felony statement,and otherwise affirmed.
By claiming that the predicate felony statement was facially insufficient because itfailed to set forth the necessary tolling period for a predicate conviction over 10 yearsold, defendant is raising the type of illegal-sentence claim that does not requirepreservation and is unaffected by defendant's valid waiver of his right to appeal (see People v Santiago, 22NY3d 900, 903 [2013]; People v Samms, 95 NY2d 52, 57 [2000]). Becausenothing in the record permits a determination of the relevant tolling period, the People'sfailure to include this information in the statement cannot be deemed harmless (seePeople v Johnson, 196 AD2d 408 [1st Dept 1993], lv denied 82 NY2d 806[1993]; see also People vJimenez, 132 AD3d 597 [1st Dept 2015]). "[T]he People's reliance on theNYSID sheet for the purpose of proving defendant's prior incarceration[ ] during whichthe statute was tolled is misplaced" (People v Peterson, 273 AD2d 88, 89 [1stDept 2000]).
Accordingly, defendant is entitled to a new sentencing proceeding, including thefiling of a proper predicate felony statement (see e.g. People v Ortiz, 19 AD3d 281 [1st Dept 2005],lv denied 5 NY3d 808 [2005]). Therefore, we do not reach defendant's remainingcontention regarding the sentence. Concur—Mazzarelli, J.P., Acosta, Moskowitz,Gische and Webber, JJ.