People v. Fields

• Decision Date: 23 December 2010
• Citation: 79 A.D.3d 1448,917 N.Y.S.2d 323
• Parties: The PEOPLE of the State of New York, Respondent, v. Charles M. FIELDS, Appellant.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 323
79 A.D.3d 1448

The PEOPLE of the State of New York, Respondent,
v.
Charles M. FIELDS, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 23, 2010.

917 N.Y.S.2d 324

Brandon E. Boutelle, Public Defender, Elizabethtown, for appellant.

Kristy L. Sprague, District Attorney, Elizabethtown (Michael P. Langey of counsel), for respondent.

Before: PETERS, J.P., ROSE, LAHTINEN, KAVANAGH and EGAN JR., JJ.

PETERS, J.P.

Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered February 20, 2007, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the second degree.

In satisfaction of multiple indictments and other charges, defendant pleaded guilty to one count of criminal sale of a controlled substance in the second degree and waived his right to appeal. The People and defendant jointly recommended that he be sentenced to a prison term of 12 years to be followed by postrelease supervision of five years, and the People further agreed not to request that he be sentenced as a persistent felony offender. County Court imposed the recommended sentence, and defendant now appeals.

Defendant claims that County Court improperly sentenced him as a second felony drug offender, and we agree. Initially, this argument implicates the legality of his sentence and, as such, survives his appeal waiver ( see People v. Glynn, 72 A.D.3d 1351, 1351-1352, 899 N.Y.S.2d 442 [2010], lv. denied 15 N.Y.3d 773, 907 N.Y.S.2d 462, 933 N.E.2d 1055 [2010]; People v. Mosley, 54 A.D.3d 1098, 1099, 863 N.Y.S.2d 846 [2008] ). The record does not reflect that the People filed a predicate felony statement prior to sentencing ( see CPL 400.21[2]; Penal Law § 70.71[4][b] ), and they concede that defendant did not have "an opportunity to be heard with respect to ... predicate sentencing" ( People v. Anthony, 52 A.D.3d 864, 865, 859 N.Y.S.2d 269 [2008], lv. denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656 [2008] ). Indeed, defendant was not advised during the plea proceedings or thereafter that he was to be sentenced as a second felony drug offender, and County Court did not explicitly find him to be such an offender or sentence him as such ( see CPL 400.21[4] ). As the provisions of CPL 400.21 were not substantially complied with, remittal is required so that defendant may be afforded adequate

917 N.Y.S.2d 325

notice and an opportunity to be heard regarding his prior convictions...