People v. Fenner, 091417 NYAPP3, 2017-06483

• Judge: Before: Garry, J.P., Egan Jr., Mulvey, Aarons and Rumsey, JJ. Garry, J.P., Egan Jr., Mulvey, Aarons and Rumsey, JJ., concur.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DWAYNE FENNER, Appellant.
• Docket Number: 2017-06483
• Date: 14 September 2017

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

DWAYNE FENNER, Appellant.

No. 2017-06483

Supreme Court of New York, Third Department

September 14, 2017

Calendar Date: August 7, 2017

Amanda FiggsGanter, Albany, for appellant.

P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), for respondent.

Before: Garry, J.P., Egan Jr., Mulvey, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered September 10, 2015, which revoked defendant's probation and imposed a sentence of imprisonment.

Defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived his right to appeal. In accordance with the terms of the plea agreement, he was sentenced to five years of probation. He was subsequently charged with violating certain conditions of his probation and admitted to the probation violations, again waiving his right to appeal. Thereafter, County Court revoked his probation and resentenced him as a second felony drug offender to 10 years in prison and three years of postrelease supervision. Defendant now appeals.

Defendant contends, among other things, that the resentence is invalid because a predicate felony statement was not filed in accordance with CPL 400.21 (2) before he was sentenced as a second felony drug offender ¹. Although this claim has not been preserved for our review due to defendant's failure to make an appropriate motion (see People v Pellegrino, 60 N.Y.2d 636, 637 [1983]), under the particular circumstances presented, we exercise our discretion in the interest of justice to take corrective action (see People v Loper, 118 A.D.3d 1394, 1395 [2014], lv denied 25 N.Y.3d 1204 [2015]; People v Kimmons, 39 A.D.3d 1180, 1181 [2007]). The People concede and the record reveals that a predicate felony statement was never filed as is required by CPL 400.21 (2). In addition, there is no indication that defendant had notice that he would be sentenced as a second felony drug offender when he admitted to the probation violations or at resentencing. Consequently, defendant did not have an opportunity to contest his prior convictions. In view of this, the resentence must be vacated and the matter remitted to County Court for resentencing (see People v Fields, 79 A.D.3d 1448, 1449 [2010]; People v Farrow, 69 A.D.3d 980, 981 [2010]; People v Mosley, ...