People v Cortez

People v Cortez 2009 NY Slip Op 07190 [66 AD3d 431] October 8, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

The People of the State of New York, Respondent,
v
Noel Cortez, Appellant.

—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Carol A. Zeldin of counsel), and Milbank, Tweed, Hadley & McCloy LLP, New York (Ateesh S. Chanda of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Deborah L. Morse of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert Stolz, J.), rendered December 17, 2007, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously modified, on the law, to the extent of vacating the persistent violent felony offender adjudication and sentence and remanding for resentencing, including the filing by the People of a proper predicate felony statement, and otherwise affirmed.

A period of time that was essential to toll the 10-year limit on the use of predicate convictions was set forth in the People's predicate felony statement, in pertinent part, as follows: "The ten-year period referred to in Penal Law § 70.06 (1) (b) (v) is extended by defendant's incarceration at Downstate Correctional Facility and Office of Mental Health and Hygiene from September 22, 1994 to June 20, 2001" (emphasis added). This was defective, because it failed to specify what portion of that time was actual incarceration, and what portion may have been psychiatric treatment by the Office of Mental Health and Hygiene that did not necessarily qualify as incarceration. The statement was facially defective in this respect, and defendant had no [*2]obligation to come forward with proof that he was not incarcerated during some part of the period in question. Concur—Mazzarelli, J.P., Friedman, Catterson, Renwick and Abdus-Salaam, JJ.