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

730
KA 12-00648
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CASEY J. HALSEY, DEFENDANT-APPELLANT.


NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (ADAM W. KOCH OF COUNSEL),
FOR DEFENDANT-APPELLANT.

CASEY J. HALSEY, DEFENDANT-APPELLANT PRO SE.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered April 21, 2011. The judgment convicted defendant, upon
his plea of guilty, of criminal possession of a controlled substance
in the fifth 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
Wyoming County Court for further proceedings in accordance with the
following Memorandum: On appeal from a judgment convicting him upon
his plea of guilty of criminal possession of a controlled substance in
the fifth degree (Penal Law § 220.06 [1]), defendant contends in his
main and pro se supplemental briefs that he was denied effective
assistance of counsel based upon the failure of defense counsel to
either facilitate his testimony before the grand jury or to move to
dismiss the indictment pursuant to CPL 190.50 (5) (c) based upon the
alleged violation of his right to testify before the grand jury. That
contention “does not survive his guilty plea or his waiver of the
right to appeal because there was no showing that the plea bargaining
process was infected by [the] allegedly ineffective assistance or that
defendant entered the plea because of his attorney[’s] allegedly poor
performance” (People v Dean, 48 AD3d 1244, 1245, lv denied 10 NY3d 839
[internal quotation marks omitted]; see People v Ruffin, 101 AD3d
1793, 1794).

     Defendant contends in his main brief that County Court’s
misstatement of his possible sentence, in the event that he violated
the terms of his conditional discharge, as 4½ years of incarceration
rather than four years rendered the plea coerced per se and therefore
involuntary. Although defendant’s contention that his plea was
                                 -2-                          730
                                                        KA 12-00648

involuntary survives his waiver of the right to appeal (see People v
Jackson, 85 AD3d 1697, 1698, lv denied 17 NY3d 817; People v Dunham,
83 AD3d 1423, 1424, lv denied 17 NY3d 794), he failed to preserve that
contention for our review by failing to move to withdraw the plea or
to vacate the judgment of conviction on that ground (see People v
Harrison, 4 AD3d 825, 826, lv denied 2 NY3d 740). In any event,
considering the plea colloquy as a whole, we conclude that the
inaccurate information defendant received regarding his possible
sentencing exposure did not render the plea involuntary (see generally
People v Garcia, 92 NY2d 869, 870-871). We have considered the
remaining contention in defendant’s main brief and conclude that it is
unpreserved (see CPL 470.05 [2]) and that, in any event, it is without
merit.

     In his pro se supplemental brief, defendant contends that the
court erred in sentencing him as a first felony drug offender rather
than a second felony drug offender. We agree. Where it is apparent
that a defendant has 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 Griffin, 72
AD3d 1496, 1497; see People v Scarbrough, 66 NY2d 673, 674, revg 105
AD2d 1107 on dissenting mem of Boomer, J.; People v Martinez, 213 AD2d
1072, 1072). “ ‘[I]t is illegal to sentence a known predicate felon
as a first offender’ ” (Griffin, 72 AD3d at 1497; see People v Stubbs,
96 AD3d 1448, 1450, lv denied 19 NY3d 1001; Martinez, 213 AD2d at
1072). Here, the People filed a second felony offender statement at
the time of the indictment, but the court did not sentence defendant
as a second felony offender. 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.




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
