People v. Favale

• Decision Date: 26 October 2010
• Parties: The PEOPLE, etc., respondent, v. Anthony FAVALE, appellant.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 400
77 A.D.3d 970

The PEOPLE, etc., respondent,
v.
Anthony FAVALE, appellant.

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

Oct. 26, 2010.

Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), for respondent.

77 A.D.3d 970

Appeal by the defendant, as limited by his brief, from an amended sentence of the County Court, Suffolk County (Braslow, J.), rendered April 28, 2009, upon his conviction of attempted criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree, after his plea of guilty.

ORDERED that the amended sentence is reversed, on the law, and the matter is remitted to the County Court, Suffolk County, for resentencing in accordance herewith.

While the defendant's contention that he was improperly adjudicated a second felony offender is unpreserved for appellate review ( see CPL 470. 05[2] ), we consider the matter in the exercise of our interest of justice jurisdiction ( see People v. Fusillo, 94 A.D.2d 802, 463 N.Y.S.2d 51). The sentencing court adjudicated the defendant a second felony offender ( see Penal Law § 70.06) absent any indication of compliance with the procedural requirements

77 A.D.3d 971

of CPL 400.21, or any showing that the defendant was given notice and an opportunity to be heard ( see People v. Bouyea, 64 N.Y.2d 1140, 490 N.Y.S.2d 724, 480 N.E.2d 338; People v. Alston, 289 A.D.2d 339, 734 N.Y.S.2d 583). Accordingly, the matter must be remitted to the County Court, Suffolk County, for resentencing ( see People v. Hamdam, 58 A.D.3d 752, 871 N.Y.S.2d 708).

MASTRO, J.P., FLORIO, DICKERSON, BELEN and LOTT, JJ., concur.