Opinion
9777 Ind. 2601/15
06-27-2019
The PEOPLE of the State of New York, Respondent, v. Brandon SIMMONS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brent Ferguson of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Brent Ferguson of counsel), for respondent.
Friedman, J.P., Gische, Kapnick, Singh, JJ.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered September 20, 2016, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him, as a second felony offender, to a term of 12 years, unanimously modified to the extent of vacating the sentence and remanding for resentencing, including a predicate felony adjudication, and otherwise affirmed.
We note at the outset that defendant was adequately represented by counsel and was given an opportunity by the court to speak. The court also correctly determined that defendant was a second felony offender based on his Pennsylvania conviction. We adhere to our previous determination (expressed, not as "dicta" but as what was intended to be an alternative holding), that the Pennsylvania statute at issue (35 Pa Cons Stat § 780–113[a][30] ) is the equivalent of a New York felony ( People v. Mulero, 251 A.D.2d 252, 675 N.Y.S.2d 46 [1st Dept. 1998], lv denied 92 N.Y.2d 928, 680 N.Y.S.2d 469, 703 N.E.2d 281 [1998] ).
However, as the People concede, defendant is entitled to resentencing because he was not actually arraigned as a second felony offender and provided with an opportunity to controvert the allegations in the predicate felony statement. Because we are vacating the sentence, we find it unnecessary to address any other issues.