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

1
KA 12-01757
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

KEVIN MILON, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered September 4, 2012. The judgment convicted
defendant, upon his plea of guilty, of manslaughter in the first
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 Erie
County Court for the filing of a predicate felony offender statement
and resentencing.

     Memorandum: Defendant appeals from a judgment convicting him,
upon his plea of guilty, of manslaughter in the first degree (Penal
Law § 125.20 [1]). We agree with defendant that the waiver of the
right to appeal does not encompass his challenge to the severity of
the sentence because “[t]he plea colloquy fails to establish that
defendant knowingly and intelligently waived [his] right to appeal the
severity of [his] sentence” (People v Maracle, 19 NY3d 925, 927). We
nevertheless reject defendant’s contention that the sentence is unduly
harsh and severe. We note, however, that the record reflects that
defendant is a predicate felon and thus the People were required to
file a predicate felony offender statement in accordance with CPL
400.21 and, if appropriate, County Court was required to sentence
defendant as a second felony offender (see People v Stubbs, 96 AD3d
1448, 1450, lv denied 19 NY3d 1001). Because we cannot permit an
illegal sentence to stand (see id.), we modify the judgment by
vacating the sentence, 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:   February 7, 2014                        Frances E. Cafarell
                                                   Clerk of the Court
