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

487
KA 10-01400
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

LUIS F. CARRASQUILLO, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered May 29, 2009. The judgment convicted defendant,
upon his plea of guilty, of criminal sale of a controlled substance in
the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence and as
modified the judgment is affirmed, and the matter is remitted to
Onondaga County Court for the filing of a predicate felony statement
prior to resentencing.

      Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal sale of a controlled substance in the third
degree (Penal Law § 220.39 [1]), defendant contends that his sentence
as a second felony drug offender is illegal because he was never given
the opportunity to challenge the prior felony conviction. Here,
although defendant admitted that he had a prior felony conviction, the
certificate of conviction does not reflect that defendant was
sentenced as a second felony drug offender. The sentence therefore is
illegal, and we modify the judgment by vacating the sentence, and we
remit the matter to County Court for the filing of a predicate felony
statement pursuant to CPL 400.21 prior to resentencing (see People v
Scarbrough, 66 NY2d 673, 674, revg on dissenting op of Boomer, J. at
105 AD2d 1107; People v Ruddy, 51 AD3d 1134, 1135, lv denied 12 NY3d
787).




Entered:    June 8, 2012                           Frances E. Cafarell
                                                   Clerk of the Court
