People v Favale

People v Favale 2010 NY Slip Op 07781 [77 AD3d 970] October 26, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 15, 2010

The People of the State of New York, Respondent,
v
Anthony Favale, Appellant.

—[*1] Robert C. Mitchell, Riverhead, N.Y. (Alfred J. Cicale of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), for respondent.

Appeal by the defendant, as limited by his brief, from an amended sentence of the County Court, Suffolk County (Braslow, J.), rendered April 28, 2009, upon his conviction of attempted criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree, after his plea of guilty.

Ordered that the amended sentence is reversed, on the law, and the matter is remitted to the County Court, Suffolk County, for resentencing in accordance herewith.

While the defendant's contention that he was improperly adjudicated a second felony offender is unpreserved for appellate review (see CPL 470.05 [2]), we consider the matter in the exercise of our interest of justice jurisdiction (see People v Fusillo, 94 AD2d 802 [1983]). The sentencing court adjudicated the defendant a second felony offender (see Penal Law § 70.06) absent any indication of compliance with the procedural requirements of CPL 400.21, or any showing that the defendant was given notice and an opportunity to be heard (see People v Bouyea, 64 NY2d 1140 [1985]; People v Alston, 289 AD2d 339 [2001]). Accordingly, the matter must be remitted to the County Court, Suffolk County, for resentencing (see People v Hamdam, 58 AD3d 752 [2009]). Mastro, J.P., Florio, Dickerson, Belen and Lott, JJ., concur.