Opinion
April 7, 1977
Appeal from the Erie County Court.
Present — Moule, J.P., Cardamone, Simons, Dillon and Witmer, JJ.
Judgment insofar as it imposes sentence unanimously reversed, on the law, and otherwise judgment affirmed, and matter remitted to Erie County Court for resentence in accordance with the following memorandum: Defendant pleaded guilty to criminal possession of a controlled substance on two counts, to wit, sixth degree and seventh degree. At sentencing the court duly advised him that if he had a prior felony conviction he could admit, deny or stand mute with respect thereof; that if he admitted it, the court would sentence him accordingly, imposing a mandatory minimum sentence, and if he denied it or stood mute, the court would hear his contentions before sentence, with a possible adjournment to the District Attorney to present his proof thereon. The court stated that if it was found that he had a prior felony conviction, the sentence would be 1 1/2 to 3 years. Defendant admitted his prior conviction, and was sentenced to 1 1/2 to 3 years. On this appeal defendant properly asserts that the sentence should be vacated and the matter should be remitted for resentencing because the District Attorney failed to comply with CPL 400.21 (subd 2). That section provides that whenever the People claim that a defendant has a prior felony conviction within the previous 10 years (Penal Law, § 70.06, subd 1, par [iv]), "a statement must be filed by the prosecutor before sentence is imposed setting forth the date and place of each alleged predicate felony conviction".