People v. Feder

Jun 20, 2012
Versions:96 A.D.3d 970
946 N.Y.S.2d 872

Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by vacating the sentences imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for resentencing in accordance herewith.

While the defendant‘s contention that he was improperly adjudicated a second felony offender is unpreserved for appellate review (see CPL 470.05 [2]), we consider the matter in the exercise of our interest ofjustice jurisdiction (see People v Favale, 77 AD3d 970 [2010]; People v Hamdam, 58 AD3d 752, 753 [2009]). As the People correctly concede, the sentencing court adjudicated the defendant a second felony offender (see Penal Law § 70.06) absent any indication of compliance with the procedural requirements of CPL 400.21, or any showing that the defendant was given notice and an opportunity to be heard (see People v Bouyea, 64 NY2d 1140, 1142 [1985]). Accordingly, we remit the matter to the Supreme Court, Nassau County, for resentencing in accordance with the mandates of CPL 400.21 (see People v Favale, 77 AD3d at 971; People v Hamdam, 58 AD3d at 753).

The defendant‘s contentions that, at the resentence, the People should be precluded from filing a statement pursuant to CPL 400.21 (2) and that CPL 440.40 applies herein are without merit. Rivera, J.P., BalkIn, Belen and Chambers, JJ., concur.