Opinion
02-18-2015
The PEOPLE, etc., respondent, v. Roy RITORTO, appellant.
Lynn W.L. Fahey, New York, N.Y. (William A. Loeb of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Gabrielle Lang of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (William A. Loeb of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Gabrielle Lang of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered January 17, 2012, convicting him of attempted burglary in the second degree, upon his plea of guilty, and sentencing him, as a persistent violent felony offender, to an indeterminate term of imprisonment of 15 years to life.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
As the People correctly concede, the defendant was improperly adjudicated a persistent violent felony offender based on the convictions enumerated in the statement filed by the People pursuant to CPL 400.16 (see Penal Law §§ 70.04[1] [b][ii] ; 70.08[1][a], [b]; People v. Morse, 62 N.Y.2d 205, 218–219, 476 N.Y.S.2d 505, 465 N.E.2d 12 ; People v. Cooper, 245 A.D.2d 569, 667 N.Y.S.2d 62 ; People v. Melero, 182 A.D.2d 839, 840, 582 N.Y.S.2d 795 ; People v. Sykes, 110 A.D.2d 918, 488 N.Y.S.2d 463 ). Accordingly, the sentence must be vacated and the matter remitted to the Supreme Court, Kings County, for resentencing, at which time the People shall, if the defendant is alleged to be a persistent violent felony offender, file a new persistent violent felony offender statement with the applicable offenses (see People v. Helmus, 125 A.D.3d 884, 4 N.Y.S.3d 116, 2015 WL 669330 [decided herewith]; People v. Cooper, 245 A.D.2d at 569, 667 N.Y.S.2d 62 ; People v. Sykes, 110 A.D.2d at 918, 488 N.Y.S.2d 463 ; see also People v. Sanchez, 131 A.D.2d 605, 606, 516 N.Y.S.2d 502 ).
RIVERA, J.P., HALL, AUSTIN and ROMAN, JJ., concur.