Opinion
04-25-2017
The PEOPLE of the State of New York, Respondent, v. Johnny TRAYLOR, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Joanne Legano Ross of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Julia P. Cohen of counsel), for respondent.
TOM, J.P., FRIEDMAN, MAZZARELLI, KAPNICK, KAHN, JJ.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered April 30, 2014, as amended on May 21, 2014, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the sentence and remanding for resentencing, and otherwise affirmed.
Although defendant's procedural challenges to his second violent felony offender adjudication are unpreserved, under the circumstances presented here, vacatur of the sentence in the interest of justice is warranted. In contrast to People v. Bouyea , 64 N.Y.2d 1140, 490 N.Y.S.2d 724, 480 N.E.2d 338 (1985), here, defendant never admitted the prior felony conviction upon which his second violent felony adjudication was predicated, and the court never adjudicated defendant a second violent felony offender. Moreover, there is no record evidence that the predicate felony statement was filed prior to sentencing, as required by CPL 400.15(2) (see People v. Camble, 17 A.D.3d 235, 793 N.Y.S.2d 393 [1st Dept.2005], lv. denied 5 N.Y.3d 786, 790, 796, 801 N.Y.S.2d 807, 811, 816, 835 N.E.2d 667, 671, 676 [2005] ; People v. Chevere, 17 A.D.3d 193, 194, 792 N.Y.S.2d 330 [1st Dept.2005] ). Further, the record does not reflect that defendant was given a copy of the predicate felony statement, as
CPL 400.15(3) requires. Thus, the record is devoid of any indication that defendant received adequate notice that the prior felony conviction in question would be used as the basis for enhancement of his sentence or had an opportunity to be heard as to the validity of that conviction (see People v. Fields, 79 A.D.3d 1448, 917 N.Y.S.2d 323 [3d Dept.2010] ). The brief, incidental, logistical comments made by Supreme Court, the clerk and the prosecutor in defendant's presence during the plea proceedings concerning the existence of a predicate felony statement are insufficient to constitute substantial compliance with CPL 400.15 requirements (see Fields, 79 A.D.3d at 1449, 917 N.Y.S.2d 323 ; People v. Anthony, 52 A.D.3d 864, 865, 859 N.Y.S.2d 269 [3d Dept.2008], lv. denied 11 N.Y.3d 733, 864 N.Y.S.2d 392, 894 N.E.2d 656 [2008] ). Thus, remanding this matter for resentencing proceedings conducted in compliance with those requirements would not be "futile and pointless" (Bouyea, 64 N.Y.2d at 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338 ), but is warranted under the circumstances presented here (see People v. Camble, 17 A.D.3d at 236, 793 N.Y.S.2d 393 ; People v. Chevere, 17 A.D.3d at 194, 792 N.Y.S.2d 330 ; People v. Jenkins, 248 A.D.2d 486, 669 N.Y.S.2d 509 [2d Dept.1998], lv. denied 91 N.Y.2d 1008, 676 N.Y.S.2d 136, 698 N.E.2d 965 [1998] ; People v. Colon, 122 A.D.2d 150, 151, 504 N.Y.S.2d 528 [2d Dept.1986], lv. denied 68 N.Y.2d 999, 510 N.Y.S.2d 1031, 503 N.E.2d 128 [1986] ).