Opinion
February 28, 1983
Appeal from the Supreme Court, Erie County, Sedita, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Denman and Moule, JJ.
Judgment unanimously modified, on the law, to vacate sentence and, as modified, affirmed and defendant remanded to Supreme Court, Erie County, for resentencing, in accordance with the following memorandum: Defendant entered a plea of guilty to burglary in the third degree in exchange for a promise that he would not be sentenced as a persistent felony offender. Although the People advised that they would file a second felony offender statement, it does not appear that one was filed. When defendant appeared for sentence, the court did not refer to his status as a predicate felon or afford him the opportunity to controvert the prior conviction (CPL 400.21; and see People v. Corey, 88 A.D.2d 560; People v. Anderson, 60 A.D.2d 632); nevertheless, it sentenced him to an indeterminate term of 3 1/2 to 7 years, a permissible sentence only if defendant had been adjudicated a predicate felon (Penal Law, § 70.06). Defendant's request to withdraw his plea was properly denied. His claim that he was subjected to family pressure and his unsupported claim of innocence despite his unequivocal prior admissions were insufficient to require the court to permit withdrawal of the plea. (See People v. Mangini, 82 A.D.2d 940; People v. Cooke, 61 A.D.2d 1060.)