PEOPLE v. RICKS (2010)

The PEOPLE of the State of New York, Respondent, v. Thomas C. RICKS, Defendant-Appellant.

Decided: March 19, 2010

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN AND GORSKI, JJ.

Michael J. Stachowski, P.C., Buffalo (Michael J. Stachowski of Counsel), for Defendant-Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of Counsel), for Respondent.

Defendant appeals from a judgment convicting him upon his plea of guilty of, inter alia, five counts of sodomy in the first degree (Penal Law former § 130.50[4] ). We agree with defendant that Supreme Court erred when, over his objection, it admitted in evidence at the second felony offender hearing the Colorado fingerprint record and the Colorado judgment of conviction without the certifications required by CPLR 4540(c) (see People v. James, 4 A.D.3d 774, 772 N.Y.S.2d 151; People v. Acebedo, 156 A.D.2d 369, 548 N.Y.S.2d 324). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for resentencing “to allow the People to overcome the technical defects of their proof” (James, 4 A.D.3d at 775, 772 N.Y.S.2d 151; see People v. Hines, 90 A.D.2d 621, 456 N.Y.S.2d 235).

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

MEMORANDUM:

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