PEOPLE v. CRUZ OCASIO (2022)

MEMORANDUM AND ORDER

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 Erie County Court for resentencing in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of four counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and three counts of criminal possession of a controlled substance in the third degree (§ 220.16 [1]). We agree with defendant that County Court improperly sentenced him as a second felony offender. Inasmuch as the error “affects the legality of his sentence, the issue is reviewable irrespective of the validity of the waiver of his right to appeal” (People v. Joseph, 167 A.D.3d 776, 777, 89 N.Y.S.3d 278 [2d Dept. 2018]; see People v. Seaberg, 74 N.Y.2d 1, 9, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989]; People v. Rodgers, 162 A.D.3d 1500, 1501, 78 N.Y.S.3d 828 [4th Dept. 2018], lv denied 32 N.Y.3d 940, 84 N.Y.S.3d 867, 109 N.E.3d 1167 [2018]). Further, we may “address the illegality of the sentence despite ․ defendant's failure to raise the issue in the trial court” (People v. Mattice, 152 A.D.3d 1240, 1240, 59 N.Y.S.3d 242 [4th Dept. 2017] [internal quotation marks omitted]). We conclude that defendant should have been sentenced as a second felony drug offender previously convicted of a violent felony (see Penal Law § 70.70 [1] [a], [b], [c]; see generally People v. Yusuf, 19 N.Y.3d 314, 318-319, 947 N.Y.S.2d 399, 970 N.E.2d 422 [2012]). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing.

In light of our determination, defendant's remaining contentions are academic.