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

390
KA 12-00729
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FLOYD VANHOOSER, DEFENDANT-APPELLANT.
(APPEAL NO. 2.)


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD 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 (William D.
Walsh, J.), rendered October 11, 2011. The judgment convicted
defendant, upon his plea of guilty, of burglary in the second degree
(three counts) and burglary in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence, and the
matter is remitted to Onondaga County Court for further proceedings in
accordance with the following memorandum: Defendant appeals from a
judgment convicting him upon his plea of guilty of three counts of
burglary in the second degree (Penal Law § 140.25 [2]) and one count
of burglary in the third degree (§ 140.20). We agree with defendant
that the waiver of the right to appeal is invalid inasmuch as there is
no indication in the record that defendant understood that the waiver
of the right to appeal was separate and distinct from those rights
automatically forfeited upon a plea of guilty (see People v Lopez, 6
NY3d 248, 256; People v Blacknell, 117 AD3d 1564, 1564-1565, lv denied
23 NY3d 1059; People v Johnson, 109 AD3d 1191, 1191, lv denied 22 NY3d
997). We further agree with defendant that this case should be
remitted for a hearing on the issue whether he is a persistent violent
felony offender. A persistent violent felony offender is one who is
convicted of a violent felony offense after having previously been
subjected to two or more predicate violent felony convictions (see §
70.08 [1] [a]). The sentence upon the predicate violent felony
convictions “must have been imposed not more than ten years before
commission of the felony of which the defendant presently stands
convicted” (§ 70.04 [1] [b] [iv]). However, “[i]n calculating the ten
year period . . . , any period of time during which the person was
incarcerated for any reason between the time of commission of the
previous felony and the time of commission of the present felony shall
be excluded and such ten year period shall be extended by a period or
                                 -2-                           390
                                                         KA 12-00729

periods equal to the time served under such incarceration” (§ 70.04
[1] [b] [v]).

     Here, defendant admitted that he was convicted of two prior
violent felonies, but objected to the tolling periods that were
computed by County Court pursuant to Penal Law § 70.04 (1) (b) (v) and
requested a hearing. After some discussion with the court, defendant
conceded that the court’s computations were correct, essentially
waiving the necessity for a hearing. We agree with defendant that his
waiver of the hearing was not effective because it was the product of
impermissible coercion by the court. The court indicated that it
could consider defendant’s request for a hearing to be a violation of
the plea agreement, but that was not accurate. “While [the court] did
advise defendant during the plea hearing that he was going to be
sentenced as a [persistent violent] felony offender, it never
specifically instructed him that admitting such [persistent violent]
felony offender status was a condition of the plea agreement and that
his failure to do so would result in a more severe sentence” (People v
Marrero, 30 AD3d 637, 638). We therefore modify the judgment by
vacating the sentence, and we remit the matter to County Court for
resentencing following a hearing in which the People will have the
burden of proof of establishing the appropriate time computations
under Penal Law § 70.04 (1) (b) (v) and, consequently, whether
defendant is a persistent violent felony offender (see People v
Shuler, 100 AD3d 1041, 1044, lv denied 20 NY3d 988; People v Williams,
48 AD3d 715, 716, lv denied 10 NY3d 940; see generally CPL 400.15 [7]
[a]; People v Diggins, 11 NY3d 518, 524).




Entered:   March 27, 2015                       Frances E. Cafarell
                                                Clerk of the Court
