Summary
In People v Pruitt (83 A.D.2d 872), the Appellate Division, Second Department, found that the failure to advise defendant of two of his Boykin rights precluded the use of that conviction for enhanced purposes under the second felony offender statute.
Summary of this case from People v. SolomonOpinion
August 17, 1981
Appeal by defendant, as limited by his brief, from a sentence of the Supreme Court, Kings County (Yoswein, J.), imposed January 8, 1979, upon his conviction of criminal possession of stolen property in the second degree, upon his plea of guilty, the sentence being an indeterminate period of imprisonment of one and one-half to three years, upon his adjudication as a second felony offender. Sentence reversed, on the law, the determination that defendant is a second felony offender is vacated, and the case is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith. During the allocution prior to the plea of guilty upon which the predicate felony conviction was rendered, defendant was not told, nor did the People show that he knew, that by pleading guilty he would waive (1) his rights to confront witnesses and have a trial by jury, and (2) his privilege against self incrimination. Accordingly, that conviction cannot be deemed a predicate felony for purposes of sentencing pursuant to section 70.06 Penal of the Penal Law (see CPL 400.21, subd 7, pars [a], [b]; People v. De Berry, 73 A.D.2d 652). Damiani, J.P., Titone, Gibbons and Weinstein, JJ., concur.