| People v Fenner |
| 2017 NY Slip Op 06483 [153 AD3d 1448] |
| September 14, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v DwayneFenner, Appellant. |
Amanda FiggsGanter, Albany, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Appeal from a judgment of the County Court of Albany County (Herrick, J.), renderedSeptember 10, 2015, which revoked defendant's probation and imposed a sentence ofimprisonment.
Defendant pleaded guilty to criminal sale of a controlled substance in the third degree andwaived his right to appeal. In accordance with the terms of the plea agreement, he was sentencedto five years of probation. He was subsequently charged with violating certain conditions of hisprobation and admitted to the probation violations, again waiving his right to appeal. Thereafter,County Court revoked his probation and resentenced him as a second felony drug offender to 10years in prison and three years of postrelease supervision. Defendant now appeals.
Defendant contends, among other things, that the resentence is invalid because a predicatefelony statement was not filed in accordance with CPL 400.21 (2) before he was sentenced as asecond felony drug offender.[FN*] Although this claim has not been preserved forour review due to defendant's failure to make an appropriate motion (see People vPellegrino, 60 NY2d 636, 637 [1983]), under the particular [*2]circumstances presented, we exercise our discretion in the interestof justice to take corrective action (seePeople v Loper, 118 AD3d 1394, 1395 [2014], lv denied 25 NY3d 1204 [2015];People v Kimmons, 39 AD3d1180, 1181 [2007]). The People concede and the record reveals that a predicate felonystatement was never filed as is required by CPL 400.21 (2). In addition, there is no indication thatdefendant had notice that he would be sentenced as a second felony drug offender when headmitted to the probation violations or at resentencing. Consequently, defendant did not have anopportunity to contest his prior convictions. In view of this, the resentence must be vacated andthe matter remitted to County Court for resentencing (see People v Fields, 79 AD3d 1448, 1449 [2010]; People v Farrow, 69 AD3d 980,981 [2010]; People v Mosley, 54AD3d 1098, 1099 [2008]; People vAnthony, 52 AD3d 864, 865 [2008], lv denied 11 NY3d 733 [2008]; People v Ruddy, 51 AD3d 1134,1135 [2008], lv denied 12 NY3d 787 [2009]).
Garry, J.P., Egan Jr., Mulvey, Aarons and Rumsey, JJ., concur. Ordered that the judgment ismodified, on the law, by vacating the sentence imposed; matter remitted to the County Court ofAlbany County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.
Footnote *:We note that, inasmuch as thisclaim implicates the legality of the resentence, it is not precluded by defendant's waiver of theright to appeal (see People v Fields,79 AD3d 1448, 1449 [2010]; People v Mosley, 54 AD3d 1098, 1099 [2008]).