Opinion
October 25, 1984
Appeal from the County Court of Ulster County (Vogt, J.).
Defendant pleaded guilty to attempted arson in the third degree and burglary in the third degree in full satisfaction of an 18-count indictment. Defendant was sentenced to concurrent terms of 2 to 4 years after having been determined to be a second felony offender. On this appeal, defendant challenges this determination, contending that County Court failed to comply with the statutory procedure for determining second felony offender status. Our review of the record reveals that, contrary to the requirements of CPL 400.21 (subd 3) (see, also, People v Collins, 100 A.D.2d 691), defendant was never provided an opportunity to controvert the allegations of the second felony offender statement. Furthermore, defendant never waived his opportunity to challenge his status as a second felony offender because he never admitted the allegations underlying the alleged predicate felony (see People v Hewitt, 97 A.D.2d 828), never admitted that he has a prior felony conviction (see People ex rel. Colon v Reid, 70 A.D.2d 893, mot for lv to app den. 48 N.Y.2d 602), and never admitted that the prior offense could serve as a predicate felony for sentencing purposes (see People v Haynes, 102 A.D.2d 604). The mere acknowledgment by defendant that he was to be sentenced as a predicate felon is no substitute for an effective waiver of defendant's right to challenge his status as a predicate felon (see People v Corey, 88 A.D.2d 560). On this record, we conclude that there has been no substantial compliance with CPL 400.21 which would permit defendant to be sentenced as a second felony offender. Accordingly the sentence must be vacated and the matter remitted for resentencing.
Judgment modified, on the law, by vacating the sentence; matter remitted to the County Court of Ulster County for resentencing; and, as so modified, affirmed. Main, J.P., Casey, Mikoll, Levine and Harvey, JJ., concur.