PEOPLE v. ALLEN (2000)

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered April 24, 1997, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4 1/212 to 9 years, unanimously affirmed.

While the initial sentence imposed was defective because the court failed to comply with CPL 400.21 before sentencing defendant as a second felony offender (see, People v. Towns, 94 A.D.2d 973, 464 N.Y.S.2d 100, lv. denied 60 N.Y.2d 595, 467 N.Y.S.2d 1042, 454 N.E.2d 137), the court rectified the error on the same day it initially imposed sentence when it, sua sponte, recalled the matter for resentencing.   Defendant was given a copy of the predicate felony statement and the opportunity to controvert his prior conviction, and declined to challenge it.

The Decision and Order of this Court entered herein on February 3, 2000 is hereby recalled and vacated.   See M-826 decided simultaneously herewith.

MEMORANDUM DECISION.