Opinion
October 16, 2001.
Appeal from judgment, Supreme Court, New York County (Herbert Adlerberg, J.), rendered April 12, 2000, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, held in abeyance, and the matter remanded for a predicate felony hearing.
Jaime Bachrach, for respondent.
Eugene B. Nathanson, for defendant-appellant.
Before: Rosenberger, J.P., Nardelli, Andrias, Saxe, JJ.
Prior to sentencing, defendant asserted, with sufficient specificity, that his Maryland conviction was obtained unconstitutionally due to the lack of effective assistance of counsel. Defendant also maintains that the crime he was convicted of in Maryland was not that alleged in the predicate felony information. Since a conviction obtained in violation of an individual's constitutional rights cannot be considered a predicate felony for sentencing purposes, defendant is entitled to a hearing to explore his assertions (People v. Mack, 203 A.D.2d 131; People v. Allen, 135 A.D.2d 1034; People v. Gonzalez, 108 A.D.2d 622). He is also entitled to a hearing on the issue of whether his Maryland conviction constitutes a felony conviction under CPL 400.21(5).
We note that our resolution of the issue concerning defendant's plea withdrawal motion would require a proper determination of whether or not defendant is actually eligible for sentencing as a second felony offender.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.