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

1264
KA 14-00036
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                MEMORANDUM AND ORDER

ANDREW J. JOHNSON, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (MARY-JEAN BOWMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered September 5, 2013. The judgment convicted
defendant, upon his plea of guilty, of burglary 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
Niagara County Court for further proceedings in accordance with the
following Memorandum: Defendant appeals from a judgment convicting
him upon his plea of guilty of burglary in the third degree (Penal Law
§ 140.20). Defendant’s sole contention on appeal is that the sentence
is unduly harsh and severe, and that contention is encompassed by
defendant’s valid waiver of the right to appeal (see People v Lopez, 6
NY3d 248, 256). We note, however, that the proper sentencing
procedures pursuant to CPL 400.21 were not followed and thus that the
sentence may be illegal. County Court sentenced defendant as a first
felony offender, but, “ ‘[w]hen it became apparent at sentencing that
defendant had a prior felony conviction, the People were required to
file a second felony offender statement in accordance with CPL 400.21
and, if appropriate, the court was then required to sentence defendant
as a second felony offender’ ” (People v Stubbs, 96 AD3d 1448, 1450,
lv denied 19 NY3d 1001). “[I]t is illegal to sentence a known
predicate felon as a first offender” (id. [internal quotation marks
omitted]) and, inasmuch as we cannot allow an illegal sentence to
stand, we modify the judgment by vacating the sentence imposed and we
remit the matter to County Court for the filing of a predicate felony
offender statement and resentencing in accordance with the law (see
id.).


Entered: January 2, 2015                           Frances E. Cafarell
                                                   Clerk of the Court
