Opinion
296
February 27, 2003.
Judgment, Supreme Court, Bronx County (Martin Marcus, J.), rendered July 10, 1998, convicting defendant, upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a term of 6 years to life, unanimously modified, on the law, to the extent of vacating the sentence and remanding for resentencing, including further proceedings on defendant's persistent violent felony offender status, and otherwise affirmed.
WILLIAM K. CLARK, for Respondent.
NANCY E. LITTLE, for Defendant-Appellant.
Before: Tom, J.P., Andrias, Buckley, Williams, Friedman, JJ.
After a suitable inquiry, the court properly denied defendant's motion to withdraw his guilty plea (see People v. Frederick, 45 N.Y.2d 520). Defendant's claim that the voluntariness of his plea was impaired by his physical and mental condition is unsupported by the record, which shows that despite the fact that he was on medication, he was rational, coherent and unequivocal in assuring the court that he fully comprehended the meaning of his plea and that he was pleading guilty of his own free will (see People v. Bermudez, 228 A.D.2d 237, lv denied 89 N.Y.2d 919). The court properly relied on the plea allocution and its own clear recollection of defendant's demeanor and responses (see People v. Wheeler, 289 A.D.2d 10, lv denied 97 N.Y.2d 763).
As the People concede, defendant was improperly adjudicated a persistent violent felony offender because the adjudication was based on predicate convictions that did not meet the sequentiality requirement of Penal Law § 70.08 (see People v. Morse, 62 N.Y.2d 205). However, under the circumstances, the People are entitled to an opportunity to establish, on the basis of a 1978 conviction, that defendant is nonetheless a persistent violent felony offender (see People v. Sailor, 65 N.Y.2d 224, cert denied 474 U.S. 982). Contrary to the People's argument, we conclude that the present record is insufficient to establish whether the 10-year period was tolled sufficiently to qualify the 1978 conviction as a predicate violent felony.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.