Opinion
KA 02-00395.
Decided April 30, 2004.
Appeal from a judgment of the Supreme Court, Erie County (Joseph S. Forma, J.), rendered January 29, 2002. The judgment convicted defendant, upon a jury verdict, of criminal possession of stolen property in the fourth degree, unauthorized use of a vehicle in the second degree and resisting arrest.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PINE, J.P., HURLBUTT, KEHOE, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law and as a matter of discretion in the interest of justice by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of stolen property in the fourth degree (Penal Law § 165.45), unauthorized use of a vehicle in the second degree (§ 165.06), and resisting arrest (§ 205.30). Defendant failed to preserve for our review his contention that the evidence of the value of the stolen vehicle is legally insufficient ( see People v. Gray, 86 N.Y.2d 10, 19) and, in any event, that contention lacks merit ( see People v. Jackson, 194 A.D.2d 691). Contrary to defendant's further contentions, the verdict is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d 490, 495), and Supreme Court did not violate CPL 200.60 in permitting the People to cross-examine defendant with respect to his 1998 conviction of unauthorized use of a vehicle in the second degree ( see People v. Ellis, 233 A.D.2d 692, 695). We also conclude that defense counsel's statements in response to the court's inquiries on defendant's pro se motion to substitute counsel did not deny defendant effective assistance of counsel ( see People v. Cross, 262 A.D.2d 223, 224, lv denied 94 N.Y.2d 902; see also People v. Rivers, 296 A.D.2d 861, 862, lv denied 99 N.Y.2d 539).
Defendant's contention that CPL 400.20 is unconstitutional is not preserved for our review ( see People v. Rosen, 96 N.Y.2d 329, 335, cert denied 534 U.S. 899; People v. Brown, 306 A.D.2d 12, 13, lv denied 100 N.Y.2d 592) and, in any event, is without merit ( see Rosen, 96 N.Y.2d at 334-335; People v. Johnson, 5 A.D.3d 1050 [Mar. 19, 2004]). We agree with defendant, however, that the sentence should be vacated because the court failed to follow the procedure set forth in CPL 400.20 in sentencing him as a persistent felony offender. "[T]he court failed to set forth on the record the reasons why it found that `the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest'" ( People v. Johnson, 275 A.D.2d 949, 951, lv denied 95 N.Y.2d 965; see People v. Brown, 268 A.D.2d 593, 593-594, lv denied 94 N.Y.2d 945; People v. Radcliffe, 185 A.D.2d 662, 663, lv denied 80 N.Y.2d 976; People v. Wilson, 64 A.D.2d 782) . Contrary to the People's contention, a proper statement issued by the court and a hearing were required, along with notice of the hearing ( see 400.20 [3], [4], [7], [9]), and the court was not entitled to rely solely on the presentence report in sentencing defendant as a persistent felony offender ( cf. People v. Virgil, 269 A.D.2d 850, lv denied 95 N.Y.2d 806). In any event, the court here merely confirmed that defendant admitted to two prior felony convictions before stating, "[y]ou do admit them so you shall be sentenced as a persistent felony offender." Although the court asked defendant whether he was waiving his right to a hearing to challenge his prior convictions ( see 400.20 [6]), defendant did not waive his right to the hearing required by section 400.20, which includes consideration of prior convictions and other matters as well ( cf. People v. Pringle, 226 A.D.2d 1072, 1073, lv denied 88 N.Y.2d 940). Although defendant failed to preserve his contention for our review ( see People v. Proctor, 79 N.Y.2d 992, 994), we nevertheless exercise our power to reach it as a matter of discretion in the interest of justice under the circumstances of this case ( see 470.15[6][a]; see also People v. Jones, 268 A.D.2d 356, 357). We further conclude that defendant did not receive meaningful representation in the context of his sentencing as a persistent felony offender ( see generally People v. Washington, 96 A.D.2d 996, 997-998). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for the assignment of new counsel and resentencing in compliance with CPL 400.20. In light of our determination, we do not reach defendant's contention that the sentence is unduly harsh and severe.