People v Hamilton 2008 NY Slip Op 02234 (4th Dept 3/14/2008)
The Fourth Department considered an unpreserved claim regarding an improperly imposed predicate sentence.
After some good language worth noting and citing in future briefs
that defendant's waiver of the right to appeal is invalid inasmuch as the court's minimal inquiry was "insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice' " (People v Brown, 296 AD2d 860, lv denied 98 NY2d 767)
the Court considered unpreserved claims that the defendant was improperly sentenced as a second violent felon. The good news is thatAs the People correctly concede, defendant's contention has merit. The sentences for the prior convictions were beyond the 10-year time limit, and the court failed to make a finding that the tolling provision applied (see Penal Law § 70.04  [b] [v]). In addition, the People failed to establish the periods during which defendant was incarcerated (see People v Gines, 284 AD2d 134), and the persistent violent felony offender information failed to list the applicable sentences for tolling purposes (see CPL 400.15 ; 400.16 ). Finally, we agree with defendant that the court failed to determine whether his convictions in other jurisdictions qualify as violent felony offenses under New York law (see generally People v Muniz, 74 NY2d 464, 467-470).
But the cautionary tale is in the relief granted
We therefore modify the judgment by vacating the sentence. We note that the sentence was imposed following defendant's plea of guilty to a superior court information upon a waiver of indictment, and the People conditioned their agreement to that waiver upon the court's imposition of the agreed-upon sentence. Thus, we remit the matter to County Court to resentence defendant or to "entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety" (People v Irwin, 166 AD2d 924, 925, citing People v Farrar, 52 NY2d 302, 307-308). Further, should the People be so disposed, they may withdraw their consent to the waiver of indictment (see CPL 195.10  [c]; People v Terry, 152 AD2d 822, 823).
Hopefully, Mr. Hamilton was aware of this possibility.
Similar issue and holding in People v Williams 2008 NY Slip Op 02248