People v. James

The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant.

Lori Pettit Rieman, District Attorney, Little Valley (Kelly M. Balcom of Counsel), for Respondent.

PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.

Opinion

MEMORANDUM:

Defendant appeals from a resentence imposed upon his conviction of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ; People v. James, 114 A.D.3d 1312, 1312, 980 N.Y.S.2d 698 ; People v. James, 92 A.D.3d 1207, 1208–1209, 937 N.Y.S.2d 798,

lv. denied 19 N.Y.3d 962, 950 N.Y.S.2d 114, 973 N.E.2d 212 ). We reject defendant's contention that County Court erred in denying his motion to redact certain information contained in the presentence report (PSR). The PSR for this resentence omitted allegedly inaccurate information concerning defendant's criminal history that had been at issue on his last appeal ( James, 114 A.D.3d at 1312, 980 N.Y.S.2d 698 ), and we conclude that defendant failed to establish that the information that remained in dispute was inaccurate ( see People v. Rudduck, 85 A.D.3d 1557, 1557–1558, 925 N.Y.S.2d 278, lv. denied 17 N.Y.3d 861, 932 N.Y.S.2d 27, 956 N.E.2d 808 ; see also People v. Paragallo, 82 A.D.3d 1508, 1510, 923 N.Y.S.2d 229 ). We note that a PSR may properly include hearsay information and information based on uncharged criminal conduct ( see People v. Massmann, 13 A.D.3d 808, 809, 785 N.Y.S.2d 726 ; People v. Thomas, 2 A.D.3d 982, 983–984, 768 N.Y.S.2d 519, lv. denied 1 N.Y.3d 602, 776 N.Y.S.2d 233, 808 N.E.2d 369 ; People v. Brunner, 182 A.D.2d 1123, 1123, 583 N.Y.S.2d 93, lv. denied 80 N.Y.2d 828, 587 N.Y.S.2d 913, 600 N.E.2d 640 ; see generally People v. Perry, 36 N.Y.2d 114, 120, 365 N.Y.S.2d 518, 324 N.E.2d 878 ). We further conclude that the court was not required to state expressly on the record that it found the information at issue to be reliable ( see generally People v. Nicholson, 26 N.Y.3d 813, 826, 28 N.Y.S.3d 663, 48 N.E.3d 944 ). Defendant was afforded a reasonable opportunity to challenge the disputed information ( see People v. Bieganowski, 104 A.D.3d 1276, 1277, 961 N.Y.S.2d 680, lv. denied 21 N.Y.3d 1002, 971 N.Y.S.2d 253, 993 N.E.2d 1275 ; People v. Redman, 148 A.D.2d 966, 966, 539 N.Y.S.2d 203, lv. denied 74 N.Y.2d 745, 545 N.Y.S.2d 120, 543 N.E.2d 763 ), and the court's handling of his objections satisfied the requirements of due process ( see generally People v. Hansen, 99 N.Y.2d 339, 345–346, 756 N.Y.S.2d 122, 786 N.E.2d 21 ; People v. Naranjo, 89 N.Y.2d 1047, 1049, 659 N.Y.S.2d 826, 681 N.E.2d 1272 ).

We agree with defendant, however, that he was improperly resentenced as a second felony drug offender inasmuch as the predicate conviction relied upon, under indictment No. 07–123, was one for which he was not sentenced until after he committed the instant crime ( see Penal Law §§ 70.06[1][b][ii] ; 70.70[1][b]; People v. Thompson, 28 A.D.3d 498, 498–499, 816 N.Y.S.2d 80 ; People v. LaBrone, 261 A.D.2d 416, 416, 691 N.Y.S.2d 61 ). Defendant's contention does not require preservation because it involves the legality of his resentence ( see People v. Samms, 95 N.Y.2d 52, 56–58, 710 N.Y.S.2d 310, 731 N.E.2d 1118 ; People v. Butler, 96 A.D.3d 1367, 1368, 946 N.Y.S.2d 343, lv. denied 20 N.Y.3d 931, 957 N.Y.S.2d 691, 981 N.E.2d 288 ), and we reject the People's contention that the error may be deemed harmless ( see People v. Coffie, 272 A.D.2d 870, 871, 709 N.Y.S.2d 262 ; cf. People v. Bouyea, 64 N.Y.2d 1140, 1142, 490 N.Y.S.2d 724, 480 N.E.2d 338 ). Although the PSR reflects that defendant has at least one other conviction that may render him a predicate felon, the predicate felony statement filed by the People did not include any such convictions, and defendant was not given an opportunity to controvert them, nor did he admit them in open court ( see People v. Hale, 52 A.D.3d 1177, 1177–1178, 859 N.Y.S.2d 838 ; Coffie, 272 A.D.2d at 871, 709 N.Y.S.2d 262 ). We therefore reverse the resentence, and we remit the matter to County Court for resentencing, to be preceded by the filing of a new predicate felony statement ( see James, 92 A.D.3d at 1209, 937 N.Y.S.2d 798 ; People v. Szarban, 155 A.D.2d 999, 999, 549 N.Y.S.2d 628 ). Moreover, because defendant had not been sentenced on his conviction under indictment No. 07–123 when he committed this

crime, the court will have the discretion upon resentencing to order that the resentence in this case shall run concurrently with the sentence defendant is serving as a result of that conviction ( see generally § 70.25[1], [2–a]; People v. Bernell, 71 A.D.3d 1516, 1516, 896 N.Y.S.2d 705 ).

In light of our determination, we do not address defendant's challenge to the severity of the resentence.

It is hereby ORDERED that the resentence so appealed from is unanimously reversed on the law and the matter is remitted to Cattaraugus County Court for the filing of a new predicate felony statement and resentencing.