Opinion
03-25-2016
The PEOPLE of the State of New York, Respondent, v. Aaron PAIGE, Defendant–Appellant. (Appeal No. 1.)
Frank H. Hiscock, Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of Counsel), for Respondent.
Frank H. Hiscock, Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Romana A. Lavalas of Counsel), for Respondent.
Opinion
MEMORANDUM:
In 2000, defendant was convicted in Supreme Court and County Court, upon his pleas of guilty, of various violent felonies charged in four separate indictments and a superior court information, and the respective courts imposed determinate sentences without postrelease supervision. At subsequent resentencing proceedings, Supreme Court reimposed the original sentences, again without postrelease supervision, upon the consent of the People (see Penal Law § 70.85; People v. Bennefield [appeal No. 2], 109 A.D.3d 1152, 1153–1154, 972 N.Y.S.2d 128, lv. denied 22 N.Y.3d 1087), 981 N.Y.S.2d 672, 4 N.E.3d 974, and defendant appeals from each resentence. He was resentenced in appeal Nos. 1 through 3 and appeal No. 5 to concurrent determinate terms of imprisonment, the longest of which are terms of 20 years. He was resentenced in appeal No. 4 to a determinate term of imprisonment of five years for burglary in the first degree (§ 140.30[4] ), to run consecutively to the other resentences.
Defendant contends in each appeal that the resentences must be vacated because he was improperly sentenced as a first violent felony offender rather than a second violent felony offender (see generally People v. Halsey, 108 A.D.3d 1123, 1124–1125, 968 N.Y.S.2d 309; People v. Stubbs, 96 A.D.3d 1448, 1450, 946 N.Y.S.2d 370, lv. denied 19 N.Y.3d 1001, 951 N.Y.S.2d 478, 975 N.E.2d 924). We agree. It was apparent throughout the pendency of these matters that defendant had a prior violent felony conviction, and therefore, at resentencing, “the People were required to file a second [violent] felony offender statement in accordance with CPL [400.15] and, if appropriate, the court was required to sentence defendant as a second [violent] felony offender” (People v. Griffin, 72 A.D.3d 1496, 1497, 899 N.Y.S.2d 771). Inasmuch as “ ‘[i]t is illegal to sentence a known predicate felon as a first offender’ ” (id.), we reverse the resentence in each appeal and remit the matters to Supreme Court for resentencing in compliance with CPL 400.15 (see generally Halsey, 108 A.D.3d at 1124–1125, 968 N.Y.S.2d 309; Griffin, 72 A.D.3d at 1497, 899 N.Y.S.2d 771).
Although defendant is correct that the five-year term of imprisonment imposed in appeal No. 4 for burglary in the first degree is illegal for a second violent felony offender (see Penal Law § 70.04[3][a] ), that circumstance does not entitle him to an opportunity to withdraw his plea with respect to each appeal at this juncture (cf. generally People v. Ciccarelli, 32 A.D.3d 1175, 1176, 822 N.Y.S.2d 186). Rather, if the court upon remittal determines that defendant must be sentenced as a second violent felony offender, it must either impose a legal sentence in a manner that ensures that he receives the benefit of his plea agreement or allow the parties the opportunity to withdraw from that agreement (see generally People v. Collier, 22 N.Y.3d 429, 432–434, 982 N.Y.S.2d 34, 5 N.E.3d 5).
In view of our determination, we do not address defendant's remaining contention.
It is hereby ORDERED that the resentence so appealed from is unanimously reversed on the law and the matter is remitted to Supreme Court, Onondaga County, for further proceedings.