PEOPLE v. DAVIS (2003)

 Defendant appeals from a judgment convicting him following a jury trial of, inter alia, criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ).   He contends that this matter should be remitted to Chautauqua County Court for a reconstruction hearing to determine whether he was deprived of his right to be present at a Sandoval hearing.   We reject that contention, inasmuch as the record does not establish that a Sandoval hearing was held (cf. People v. Mitchell, 189 A.D.2d 337, 596 N.Y.S.2d 612, lv. dismissed 81 N.Y.2d 1065, 601 N.Y.S.2d 564, 619 N.E.2d 642). “Defendant is relegated to a motion for postjudgment relief pursuant to CPL 440.10(1)(f)” (People v. Larrabee, 201 A.D.2d 924, 924, 607 N.Y.S.2d 769, lv. denied 83 N.Y.2d 855, 612 N.Y.S.2d 386, 634 N.E.2d 987).   Defendant's further contention concerning alleged prosecutorial misconduct on summation is not preserved for our review (see CPL 470.05[2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15[6][a] ).   Finally, we agree with defendant that he was illegally sentenced as a second felony offender because the People and the court failed to comply with CPL 400.21 (see People v. Welch, 234 A.D.2d 404, 404-405, 651 N.Y.S.2d 885;  People v. Kennedy, 151 A.D.2d 831, 833, 542 N.Y.S.2d 806;  People v. Towns, 94 A.D.2d 973, 464 N.Y.S.2d 100).   We reject the People's contention that defendant waived compliance with CPL 400.21 when he stipulated at trial to the prior felony conviction (see 200.60 [3][a] ).   We therefore modify the judgment by vacating the sentence, and we remit the matter to Chautauqua County Court for resentencing in compliance with CPL 400.21.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Chautauqua County Court for resentencing.

MEMORANDUM: