People v Cruz

People v Cruz 2021 NY Slip Op 05297 Decided on October 05, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 05, 2021
Before: Webber, J.P., Singh, Scarpulla, Mendez, Rodriguez, JJ.
Ind No. 1947/15 Appeal No. 14296 Case No. 2018-1232

[*1]The People of the State of New York, Respondent,

v

Cesar Cruz, Defendant-Appellant.

Feldman & Feldman, Manhasset (Arza Feldman of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J. at plea; Abraham L. Clott, J. at predicate felony offender adjudication, sentencing and resentencing), rendered June 1, 2016, as amended July 26, 2016, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the second degree and conspiracy in the fourth degree, and sentencing him, as a second felony drug offender, to an aggregate term of six years, unanimously modified, on the law, to the extent of remanding to Supreme Court for resentencing in accordance with this decision, and otherwise affirmed.

Defendant's claim that he was never arraigned on a predicate felony statement is refuted by the record, which establishes that the relevant proceeding was duly conducted on October 2, 2015 in accordance with CPL 400.21.

However, defendant should not have been resentenced in his absence (see CPL 380.40[1]). The record is insufficient to establish that defendant was made aware of his right to be present and that he decided not to appear (see People v Keen , 252 AD2d 278, 281 [1st Dept 1999], affd 94 NY2d 533 [2000]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 5, 2021