| People v James |
| 2016 NY Slip Op 04525 [140 AD3d 1628] |
| June 10, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Elliott I. James, Also Known as Pig,Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of counsel), forrespondent.
Appeal from a resentence of the Cattaraugus County Court (Ronald D. Ploetz, J.),rendered August 11, 2014. Defendant was resentenced upon his conviction of criminalpossession of a controlled substance in the third degree.
It is hereby ordered that the resentence so appealed from is unanimously reversed onthe law and the matter is remitted to Cattaraugus County Court for the filing of a newpredicate felony statement and resentencing.
Memorandum: Defendant appeals from a resentence imposed upon his conviction ofcriminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]; People v James, 114 AD3d 1312, 1312 [2014]; People v James, 92 AD3d1207, 1208-1209 [2012], lv denied 19 NY3d 962 [2012]). We rejectdefendant's contention that County Court erred in denying his motion to redact certaininformation contained in the presentence report (PSR). The PSR for this resentenceomitted allegedly inaccurate information concerning defendant's criminal history that hadbeen at issue on his last appeal (James, 114 AD3d at 1312), and we conclude thatdefendant failed to establish that the information that remained in dispute was inaccurate(see People v Rudduck, 85AD3d 1557, 1557-1558 [2011], lv denied 17 NY3d 861 [2011]; see also People v Paragallo, 82AD3d 1508, 1510 [2011]). We note that a PSR may properly include hearsayinformation and information based on uncharged criminal conduct (see People v Massmann, 13AD3d 808, 809 [2004]; People v Thomas, 2 AD3d 982, 983-984 [2003], lvdenied 1 NY3d 602 [2004]; People v Brunner, 182 AD2d 1123, 1123[1992], lv denied 80 NY2d 828 [1992]; see generally People v Perry, 36NY2d 114, 120 [1975]). We further conclude that the court was not required to stateexpressly on the record that it found the information at issue to be reliable (see generally People vNicholson, 26 NY3d 813, 826 [2016]). Defendant was afforded a reasonableopportunity to challenge the disputed information (see People v Bieganowski, 104 AD3d 1276, 1277 [2013],lv denied 21 NY3d 1002 [2013]; People v Redman, 148 AD2d 966, 966[1989], lv denied 74 NY2d 745 [1989]), and the court's handling of hisobjections satisfied the requirements of due process (see generally People vHansen, 99 NY2d 339, 345-346 [2003]; People v Naranjo, 89 NY2d 1047,1049 [1997]).
We agree with defendant, however, that he was improperly resentenced as a secondfelony drug offender inasmuch as the predicate conviction relied upon, under indictmentNo. 07-123, was one for which he was not sentenced until after he committed the instantcrime (see Penal Law §§ 70.06 [1] [b] [ii]; 70.70 [1] [b]; People v Thompson, 28 AD3d498, 498-499 [2006]; People v LaBrone, 261 AD2d 416, 416 [1999]).Defendant's contention does not require preservation because it involves the legality ofhis resentence (see People v Samms, 95 NY2d 52, 56-58 [2000]; People v Butler, 96 AD3d1367, 1368 [2012], lv denied 20 NY3d 931 [2012]), and we reject thePeople's contention that the error may be deemed harmless (see People v Coffie,272 AD2d 870, 871 [2000]; cf. People v Bouyea, 64 NY2d 1140, 1142 [1985]).Although the PSR reflects that defendant has at least one other conviction that mayrender him a predicate felon, the predicate felony statement filed [*2]by the People did not include any such convictions, anddefendant was not given an opportunity to controvert them, nor did he admit them inopen court (see People vHale, 52 AD3d 1177, 1177-1178 [2008]; Coffie, 272 AD2d at 871). Wetherefore reverse the resentence, and we remit the matter to County Court forresentencing, to be preceded by the filing of a new predicate felony statement (seeJames, 92 AD3d at 1209; People v Szarban, 155 AD2d 999, 999 [1989]).Moreover, because defendant had not been sentenced on his conviction under indictmentNo. 07-123 when he committed this crime, the court will have the discretion uponresentencing to order that the resentence in this case shall run concurrently with thesentence defendant is serving as a result of that conviction (see generally PenalLaw § 70.25 [1], [2-a]; People v Bernell, 71 AD3d 1516, 1516 [2010]).
In light of our determination, we do not address defendant's challenge to the severityof the resentence. Present—Whalen, P.J., Carni, NeMoyer, Troutman andScudder, JJ.