Opinion
January 29, 1982
Appeal by defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered June 13, 1979, convicting him of robbery in the first degree and criminal possession of stolen property in the third degree, upon a jury verdict, and sentencing him as a "predicate felon". By order of this court dated July 13, 1981, the case was remitted to Criminal Term to hear and report on defendant's claim that his predicate felony conviction had been obtained in violation of his constitutional rights (see CPL 400.21, subd 7, par [b]) and the appeal has been held in abeyance in the interim ( People v. Bennett, 83 A.D.2d 579). Criminal Term (Savarese, J.), has now complied and this court is in receipt of its report, dated November 10, 1981, which concluded that the defendant's 1975 conviction is constitutionally defective and may not stand as a predicate felony for sentencing under section 70.06 Penal of the Penal Law. Judgment modified, on the law, by vacating the sentence imposed on the robbery conviction. As so modified, judgment affirmed and case remitted to the Supreme Court, Queens County, for resentencing in accordance herewith. We agree with the report of Criminal Term that defendant's 1975 felony conviction should not have been used as a predicate felony for sentencing purposes in this case. The minutes of that prior conviction demonstrate that defendant was neither advised of the consequences of his plea nor of the rights that he would be waiving by entering the plea (see People v. Pruitt, 83 A.D.2d 872; People v. De Berry, 73 A.D.2d 652; People v. Brown, 67 A.D.2d 949). Therefore, defendant must be resentenced on the robbery conviction. We have considered defendant's other contentions and find them to be without merit. Gibbons, J.P., Gulotta, Cohalan and Bracken, JJ., concur.