        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

122
KA 12-01254
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

AARON PAIGE, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (ROMANA A. LAVALAS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered July 5, 2012. Defendant was
resentenced upon his conviction of robbery in the first degree,
burglary in the first degree, robbery in the second degree and
burglary in the second degree.

     It is hereby ORDERED that the resentence so appealed from is
unanimously reversed on the law and the matter is remitted to Supreme
Court, Onondaga County, for further proceedings in accordance with the
following memorandum: In 2000, defendant was convicted in Supreme
Court and County Court, upon his pleas of guilty, of various violent
felonies charged in four separate indictments and a superior court
information, and the respective courts imposed determinate sentences
without postrelease supervision. At subsequent resentencing
proceedings, Supreme Court reimposed the original sentences, again
without postrelease supervision, upon the consent of the People (see
Penal Law § 70.85; People v Bennefield [appeal No. 2], 109 AD3d 1152,
1153-1154, lv denied 22 NY3d 1087), and defendant appeals from each
resentence. He was resentenced in appeal Nos. 1 through 3 and appeal
No. 5 to concurrent determinate terms of imprisonment, the longest of
which are terms of 20 years. He was resentenced in appeal No. 4 to a
determinate term of imprisonment of five years for burglary in the
first degree (§ 140.30 [4]), to run consecutively to the other
resentences.

     Defendant contends in each appeal that the resentences must be
vacated because he was improperly sentenced as a first violent felony
offender rather than a second violent felony offender (see generally
People v Halsey, 108 AD3d 1123, 1124-1125; People v Stubbs, 96 AD3d
1448, 1450, lv denied 19 NY3d 1001). We agree. It was apparent
throughout the pendency of these matters that defendant had a prior
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                                                         KA 12-01254

violent felony conviction, and therefore, at resentencing, “the People
were required to file a second [violent] felony offender statement in
accordance with CPL [400.15] and, if appropriate, the court was
required to sentence defendant as a second [violent] felony offender”
(People v Griffin, 72 AD3d 1496, 1497). Inasmuch as “ ‘[i]t is
illegal to sentence a known predicate felon as a first offender’ ”
(id.), we reverse the resentence in each appeal and remit the matters
to Supreme Court for resentencing in compliance with CPL 400.15 (see
generally Halsey, 108 AD3d at 1124-1125; Griffin, 72 AD3d at 1497).

     Although defendant is correct that the five-year term of
imprisonment imposed in appeal No. 4 for burglary in the first degree
is illegal for a second violent felony offender (see Penal Law § 70.04
[3] [a]), that circumstance does not entitle him to an opportunity to
withdraw his plea with respect to each appeal at this juncture (cf.
generally People v Ciccarelli, 32 AD3d 1175, 1176). Rather, if the
court upon remittal determines that defendant must be sentenced as a
second violent felony offender, it must either impose a legal sentence
in a manner that ensures that he receives the benefit of his plea
agreement or allow the parties the opportunity to withdraw from that
agreement (see generally People v Collier, 22 NY3d 429, 432-434).

     In view of our determination, we do not address defendant’s
remaining contention.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
