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

154
KA 13-02062
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND NEMOYER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DELVON HARLEY, DEFENDANT-APPELLANT.


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

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered September 25, 2013. The judgment convicted
defendant, upon his plea of guilty, of attempted murder in the second
degree and robbery in the first degree (two counts).

     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 further proceedings in accordance with the
following memorandum: On appeal from a judgment convicting him, upon
his plea of guilty, of attempted murder in the second degree (Penal
Law §§ 110.00, 125.25 [1]) and two counts of robbery in the first
degree (§ 160.15 [4]), defendant contends only that his sentence is
unduly harsh and severe. We reject that contention. We note,
however, that the sentence cannot stand inasmuch as County Court
failed to sentence defendant as a second felony offender. “[I]t is
illegal to sentence a known predicate felon as a first offender”
(People v Holley, 168 AD2d 992, 993; see People v Stubbs, 96 AD3d
1448, 1450, lv denied 19 NY3d 1001). Here, the People filed a second
felony offender statement, and defendant failed to controvert its
allegations. By statute, the “[u]ncontroverted allegations in the
statement shall be deemed to have been admitted by the defendant” (CPL
400.21 [3]; see People v Neary, 56 AD3d 1224, 1224, lv denied 11 NY3d
928). Moreover, “[w]here the uncontroverted allegations in the
statement are sufficient to support a finding that the defendant has
been subjected to a predicate felony conviction[,] the court must
enter such finding” (CPL 400.21 [4]). We therefore modify the
judgment by vacating the sentence, and we remit the matter to County
Court for resentencing in compliance with CPL 400.21 (see People v
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                                                KA 13-02062

Halsey, 108 AD3d 1123, 1124-1125).




Entered:   February 3, 2017            Frances E. Cafarell
                                       Clerk of the Court
