Opinion
Filed May 10, 2000.
Appeal from Judgment of Monroe County Court, Bristol, J. — Robbery, 1st Degree.
Present: PIGOTT, JR., P. J., GREEN, HURLBUTT, KEHOE AND BALIO, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Monroe County Court for further proceedings in accordance with the following Memorandum:
In accordance with a plea bargain, defendant pleaded guilty to robbery in the first degree (Penal Law § 160.15) and was sentenced to a determinate term of incarceration of 12 years. We agree with defendant that County Court erred in sentencing him as a second felony offender because neither the court nor the prosecutor complied with the procedures required by CPL 400.21. Although the certificate of conviction and the sentencing minutes do not explicitly provide that defendant was sentenced as a second felony offender, the 12-year determinate sentence recommended by the prosecutor and imposed by the court is legal only if defendant is adjudicated a second felony offender ( see, Penal Law § 70.06 [a]). While the presentence investigation report indicates that defendant had a prior felony conviction, the People did not file a predicate felony statement and the court neither inquired about a prior conviction nor expressly adjudicated defendant a second felony offender before or during sentencing. Thus, defendant was never given the opportunity to controvert the prior felony conviction. Furthermore, defendant never acknowledged the prior felony conviction during the proceedings. Contrary to the contention of the People, this is not a case where the failure to file a predicate felony statement may be deemed harmless error ( cf., People v. Bouyea, 64 N.Y.2d 1140, 1142; People v. Dawson [John], ___ A.D.2d ___ [decided Feb. 16, 2000]). We therefore modify the judgment by vacating the sentence, and we remit the matter to Monroe County Court for resentencing and, if the People are so disposed, for the filing of a second felony offender statement pursuant to CPL 400.21 prior to resentencing.