Opinion
2022–01826 Ind. No. 9/21
01-17-2024
The PEOPLE, etc., respondent, v. Dujuan MARSHALL, appellant.
Yasmin Daley Duncan, Brooklyn, NY, for appellant. Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent.
Yasmin Daley Duncan, Brooklyn, NY, for appellant.
Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., DEBORAH A. DOWLING, BARRY E. WARHIT, LAURENCE L. LOVE, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered January 24, 2022, convicting him of criminal possession of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Dutchess County, for resentencing in accordance herewith.
As the People correctly concede, the County Court erred in sentencing the defendant as a second felony offender without adjudicating him as such in compliance with the procedural requirements of CPL 400.21, or any showing that the defendant was given notice and an opportunity to be heard (see People v. Smith, 127 A.D.3d 790, 791, 6 N.Y.S.3d 282 ; People v. Puca, 106 A.D.3d 758, 758, 963 N.Y.S.2d 734 ; People v. Feder, 96 A.D.3d 970, 971, 946 N.Y.S.2d 872 ). Contrary to the People's contention, the defendant's claim here is not subject to the rule of preservation because the court did not advise the defendant that he would be sentenced as a second felony offender and he had no opportunity to object to the deficiency of the proceeding (see People v. Turner, 24 N.Y.3d 254, 997 N.Y.S.2d 671, 22 N.E.3d 179 ).
Accordingly, we remit the matter to the County Court, Dutchess County, for resentencing in accordance with the mandates of CPL 400.21.
BRATHWAITE NELSON, J.P., DOWLING, WARHIT and LOVE, JJ., concur.