Opinion
2011-11-15
The PEOPLE, etc., respondent,v.Thomas SMITH, appellant.
Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant, and appellant pro se.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum, and Phyllis Mintz of counsel), for respondent.
Appeal by the defendant from a resentence of the Supreme Court, Kings County (Firetog, J.), imposed March 12, 2007, upon his conviction of burglary in the first degree, upon a jury verdict.
ORDERED that the resentence is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
At the resentencing proceeding ordered by this Court ( see People v. Smith, 25 A.D.3d 573, 807 N.Y.S.2d 402), the defendant challenged the constitutionality of two convictions that the People sought to utilize as predicate violent felony convictions. As to the conviction on Indictment No. 13330/94, the defendant's allegations in support of his contention that his plea of guilty had been coerced were insufficient to warrant a hearing, because the defendant's factual allegations did not raise a question as to the voluntariness of his plea ( cf. People v. Grant, 61 A.D.3d 177, 182–183, 873 N.Y.S.2d 355). The defendant's allegations with respect to the conviction on Indictment No. 13791/91, however, were sufficient to warrant a hearing on whether his plea of guilty in that case was *705 knowingly entered. The Supreme Court, therefore, should have conducted a hearing before resentencing the defendant as a persistent violent felony offender ( see CPL 400.15, 400.20). Consequently, the resentence must be reversed and the matter remitted to the Supreme Court, Kings County, for a determination of the defendant's status as a persistent violent felony offender ( see People v. Kilgore, 199 A.D.2d 1008, 608 N.Y.S.2d 12), to be followed by resentencing.
The defendant's remaining contentions are without merit.
SKELOS, J.P., HALL, LOTT and ROMAN, JJ., concur.