PEOPLE v. RAMIREZ (2008)

Order, Supreme Court, New York County (Roger S. Hayes, J.), entered on or about May 19, 2006, as amended September 6, 2006, which adjudicated defendant a second felony offender whose prior felony conviction was for a violent felony and specified and informed him that the court would resentence him to a term of 15 years for his conviction of criminal possession of a controlled substance in the first degree, unanimously affirmed, and the matter remitted to Supreme Court, New York County, for further proceedings upon defendant's application for resentencing.

There was no predicate felony adjudication at the time of defendant's original sentence of 15 years to life, and such an adjudication would have been superfluous under the law existing at that time.   Defendant's request for resentencing placed the case in a procedural posture that required the People to file a predicate felony statement, and the court was required to sentence defendant as a second felony drug offender whose prior conviction is for a violent felony (see People v. Alcequier, 43 A.D.3d 699, 841 N.Y.S.2d 550 [2007] ).  People v. Winthrow, 38 A.D.3d 323, 831 N.Y.S.2d 415 [2007] is not to the contrary, since it deals with a different procedural situation that is addressed by CPL 400.21(8).