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

1398
KA 10-01756
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

THOMAS C. RICKS, DEFENDANT-APPELLANT.


KEVIN J. BAUER, ALBANY, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a resentence of the Supreme Court, Erie County (Penny
M. Wolfgang, J.), rendered August 2, 2010. Defendant was resentenced
upon his conviction of sodomy in the first degree (five counts) and
endangering the welfare of a child.

     It is hereby ORDERED that the resentence so appealed from is
unanimously reversed on the law, and the matter is remitted to Supreme
Court, Erie County, for resentencing in accordance with the following
Memorandum: Defendant appeals from a resentence pursuant to which
Supreme Court sentenced him as a second felony offender. On a prior
appeal, we modified the judgment convicting defendant upon his plea of
guilty of, inter alia, five counts of sodomy in the first degree
(Penal Law former § 130.50 [4]) by vacating the sentence and remitted
the matter to Supreme Court for resentencing to allow the People to
overcome the technical defects in their proof of defendant’s status as
a second felony offender inasmuch as the original proof failed to
comply with CPLR 4540 (c) (People v Ricks, 71 AD3d 1444). Pursuant to
that statute, “[w]here the copy [of an official publication] is
attested by an officer of another jurisdiction, it shall be
accompanied by a certificate that such officer has legal custody of
the record, and that his [or her] signature is believed to be genuine,
which certificate shall be made by a judge of a court of record of the
district or political subdivision in which the record is kept, with
the seal of the court affixed; or by any public officer having a seal
of office and having official duties in that district or political
subdivision with respect to the subject matter of the record, with the
seal of his [or her] office affixed” (CPLR 4540 [c]).

     Following remittal, the court conducted another second felony
offender hearing, where the People submitted a fingerprint record from
Colorado that was properly authenticated by the agent in charge of the
identification unit for the Colorado Bureau of Investigation in
conformance with the first requirement of CPLR 4540 (c). The document
                                 -2-                          1398
                                                         KA 10-01756

that purports to certify that the agent in charge had legal custody of
the fingerprint record, however, is also signed by that agent in
charge, and thus it does not comply with the statute’s requirement
that the out-of-state document be authenticated by the certificate of
a second, separate authority (see generally Alexander, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C4540:4). We
reject the People’s contention that strict compliance with CPLR 4540
(c) is not necessary (see People v Redmond, 41 AD3d 514, 515, lv
denied 16 NY3d 745; People v James, 4 AD3d 774). We therefore reverse
the resentence, and we remit the matter to Supreme Court for
resentencing “to allow the People to overcome the technical defects of
their proof” (James, 4 AD3d at 775; see People v Hines, 90 AD2d 621).




Entered:   December 23, 2011                   Frances E. Cafarell
                                               Clerk of the Court
