

People v Ritorto (2015 NY Slip Op 01475)





People v Ritorto


2015 NY Slip Op 01475


Decided on February 18, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 18, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
SHERI S. ROMAN, JJ.


2012-01810
 (Ind. No. 7335/10)

[*1]The People of the State of New York, respondent,
vRoy Ritorto, appellant.


Lynn W. L. Fahey, New York, N.Y. (William A. Loeb of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and Gabrielle Lang of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice, J.), rendered January 17, 2012, convicting him of attempted burglary in the second degree, upon his plea of guilty, and sentencing him, as a persistent violent felony offender, to an indeterminate term of imprisonment of 15 years to life.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for resentencing in accordance herewith.
As the People correctly concede, the defendant was improperly adjudicated a persistent violent felony offender based on the convictions enumerated in the statement filed by the People pursuant to CPL 400.16 (see Penal Law §§ 70.04[1][b][ii]; 70.08[1][a], [b]; People v Morse, 62 NY2d 205, 218-219; People v Cooper, 245 AD2d 569; People v Melero, 182 AD2d 839, 840; People v Sykes, 110 AD2d 918). Accordingly, the sentence must be vacated and the matter remitted to the Supreme Court, Kings County, for resentencing, at which time the People shall, if the defendant is alleged to be a persistent violent felony offender, file a new persistent violent felony offender statement with the applicable offenses (see People v Helmus, _____ AD3d _____ [decided herewith]; People v Cooper, 245 AD2d at 569; People v Sykes, 110 AD2d at 918; see also People v Sanchez, 131 AD2d 605, 606).
RIVERA, J.P., HALL, AUSTIN and ROMAN, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


