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People v. Smith

Appellate Division of the Supreme Court of New York, Second Department
Sep 19, 1977
59 A.D.2d 618 (N.Y. App. Div. 1977)

Opinion

September 19, 1977


Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered January 27, 1977, convicting him of possession of weapons, etc., as a felony, upon his plea of guilty, and sentencing him as a second felony offender. Judgment affirmed as to the conviction; judgment reversed as to the sentence, on the law and as a matter of discretion in the interest of justice, and case remitted to the Criminal Term for resentence in accordance herewith. The record reveals that prior to being sentenced, defendant-appellant moved that the Judge, who had taken his plea on the weapons charge in February, 1974, disqualify himself because, as a former Assistant District Attorney, the Judge had prosecuted defendant for a prior offense in 1964. (The defendant did not raise this issue when he entered his plea.) Thereafter, the Judge conducted a second felony offender hearing, pursuant to CPL 400.21, held that defendant was a second felony offender and imposed sentence. The predicate offense upon which the Judge based his determination that defendant was a second felony offender, was the same one he had prosecuted defendant for in 1964. In view of the foregoing, we direct that the case be remitted to Criminal Term for a de novo second felony offender hearing, and for resentence, before another Judge (cf. People v Tartaglia, 35 N.Y.2d 918). We also recommend that before resentence, Criminal Term order an up to date probation report. Cohalan, J.P., Titone, Hawkins and Suozzi, JJ., concur.


Summaries of

People v. Smith

Appellate Division of the Supreme Court of New York, Second Department
Sep 19, 1977
59 A.D.2d 618 (N.Y. App. Div. 1977)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GENE SMITH, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 19, 1977

Citations

59 A.D.2d 618 (N.Y. App. Div. 1977)

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