Opinion
2017-02160 2017-02161 Ind. Nos. 1735/14, 1202/16
10-03-2018
The PEOPLE, etc., respondent, v. David H. SPENCER, appellant.
Paul Skip Laisure, New York, NY, for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, and William H. Branigan of counsel; Lorrie A. Zinno on the memorandum), for respondent.
Paul Skip Laisure, New York, NY, for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kew Gardens, and William H. Branigan of counsel; Lorrie A. Zinno on the memorandum), for respondent.
ALAN D. SCHEINKMAN, P.J., SHERI S. ROMAN, JEFFREY A. COHEN, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from two sentences of the Supreme Court, Queens County (Barry Kron, J.), both imposed December 8, 2016, upon his pleas of guilty, on the grounds that the sentences were illegal and excessive.
ORDERED that the sentences are reversed, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Queens County, for resentencing in accordance herewith.
The defendant's contention that he was improperly sentenced as a second felony offender is unpreserved for appellate review since he did not contest or controvert his status as a second felony offender at the sentencing hearing (see CPL 470.05[2] ; People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ; People v. Smith, 73 N.Y.2d 961, 962–963, 540 N.Y.S.2d 987, 538 N.E.2d 339 ; People v. Taylor, 132 A.D.3d 915, 915–916, 17 N.Y.S.3d 885 ). However, we consider the issue in the exercise of our interest of justice jurisdiction (see People v. Mitchell, 134 A.D.3d 961, 961–962, 21 N.Y.S.3d 339 ; People v. Smith, 127 A.D.3d 790, 791, 6 N.Y.S.3d 282 ). The predicate felony statement filed by the People did not set forth the dates of the defendant's incarceration since the commission of his prior felony in 1996, as required by CPL 400.21(2). Consequently, the People failed to establish a sufficient tolling period to qualify the defendant's 1996 conviction as a predicate felony under Penal Law § 70.06(1)(b)(iv) and (v) (see People v. Williams, 294 A.D.2d 174, 175, 741 N.Y.S.2d 680 ; People v. Peterson, 273 A.D.2d 88, 89, 709 N.Y.S.2d 540 ; People v. Tatta, 177 A.D.2d 674, 576 N.Y.S.2d 368 ; People v. Graybosch, 139 A.D.2d 664, 665, 527 N.Y.S.2d 304 ). Under the circumstances of this case, the error was not harmless (see People v. Tatta, 177 A.D.2d at 674–675, 576 N.Y.S.2d 368 ; cf. People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338 ). Accordingly, we vacate the sentences imposed, and remit the matter to the Supreme Court, Queens County, for resentencing.
In light of our determination, the defendant's contention that the sentences are otherwise excessive is academic (see People v. Figueroa, 42 A.D.3d 576, 577, 840 N.Y.S.2d 135 ; People v. Thompson, 28 A.D.3d 498, 499, 816 N.Y.S.2d 80 ).
SCHEINKMAN, P.J., ROMAN, COHEN, DUFFY and LASALLE, JJ., concur.