Opinion
February 9, 2000
Judgment, Supreme Court, Bronx County (Phyllis Bamberger, J.), rendered April 24, 1997, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/2 to 9 years, unanimously modified, in the interest of justice, to vacate defendant's sentence and remand for resentencing in accordance with CPL 400.21, and otherwise affirmed.
Argiro Kosmetatos, for Respondent.
Carol A. Zeldin, for Defendant-Appellant.
ROSENBERGER, J.P., WILLIAMS, LERNER, SAXE, BUCKLEY, JJ.
Defendant's sentence must be vacated because neither the court nor the prosecutor complied with the procedures required by CPL 400.21 for sentencing him as a predicate felon. Defendant pleaded guilty to criminal sale of a controlled substance in the third degree. After failing to comply with the drug treatment program that he was offered in the plea agreement as an alternative to incarceration, he was sentenced to 4 1/2 to 9 years. This sentence would not be appropriate unless defendant were adjudicated a second felony offender.
While the presentence report indicated that defendant had two prior felony convictions, the People did not file a predicate felony statement. The court did not inquire about prior convictions, nor did it expressly adjudicate defendant a second felony offender before imposing sentence. Defendant never acknowledged any prior conviction during the proceedings. The only reference to defendant's status occurred at a hearing on his compliance with the drug treatment conditions of the plea agreement, where the court, in passing, described defendant as a "predicate" and stated that he was facing a sentence of 4 1/2 to 9 years.
Although defendant failed to preserve his CPL 400.21 claim (People v. Pellegrino, 60 N.Y.2d 636, 637), we choose to reach the issue in the interest of justice (see, People v. Bryant, 180 A.D.2d 874, 875).
Strict compliance with CPL 400.21 is required so that a defendant will have an opportunity to challenge the basis for the court's sentence (People v. Towns, 94 A.D.2d 973, lv denied 60 N.Y.2d 595). While failure to file a predicate felony statement has occasionally been deemed harmless error, rendering it pointless to remand for resentencing (People v. Harris, 61 N.Y.2d 9, 20; People v. Bouyea, 64 N.Y.2d 1140, 1142), these cases are distinguishable. In both Harris and Bouyea, since the defendant had explicitly admitted his prior felony conviction and acknowledged his predicate felony offender status on the record, "the statutory purposes of apprising the court of the predicate felony conviction and providing the defendant with reasonable notice and an opportunity to be heard were satisfied" (Harris, supra, at 20). While we declined to remand for resentencing in People v. Nunez ( 253 A.D.2d 685, 686, lv denied 91 N.Y.2d 871), we found there that the sentencing court had "substantially complied with" the purpose of CPL 400.21. Such was not the case here.
By contrast, resentencing was considered obligatory in several cases where, as here, the defendant neither admitted the predicate conviction nor was given the opportunity to controvert it (People v. Towns, supra; People v. Davis, 240 A.D.2d 309, 310, lv denied 91 N.Y.2d 871; People v. Pfunter, 101 A.D.2d 1020, lv denied 62 N.Y.2d 990), even when the issue was unpreserved due to the defendant's failure to file a motion to vacate her conviction (People v. Bryant, supra, at 875). A passing mention of defendant's predicate felon status is not equivalent to an opportunity to be heard (see, People v. Corey, 88 A.D.2d 560, lv denied 63 N.Y.2d 774). Defendant never explicitly waived his right to controvert the People's allegations (People v. Davis, supra, at 310). He had no reason to litigate this issue prematurely at a hearing on his compliance with the drug treatment program, as he was naturally unaware that the People and the sentencing court would fail to attend to the matter at the appropriate time.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.