PEOPLE v. WILSEY (2003)

Appeal from a judgment of the County Court of Delaware County (Estes, J.), rendered December 3, 2001, convicting defendant upon his plea of guilty of the crimes of rape in the second degree, sodomy in the second degree, driving while intoxicated and endangering the welfare of a child and the traffic infraction of possession of an alcoholic beverage in a motor vehicle.

Defendant's conviction arises out of his sexual relations with a 14-year-old girl and his subsequent arrest for driving while intoxicated.   Prior to trial, defendant moved, inter alia, to suppress oral and written statements he had made at the time of his initial detention as violative of his Miranda rights.   The People opposed the motion, but County Court summarily granted the motion to suppress the statements after finding that the People had not submitted any evidence to controvert defendant's allegations.   The People then moved to reargue the motion, contending that a hearing was required on the suppression motion pursuant to CPL 710.60.   County Court granted the motion to reargue and scheduled a suppression hearing.   However, a plea agreement was reached before the scheduled hearing and, upon entry of guilty pleas in satisfaction of the indictment, defendant was sentenced to concurrent indeterminate prison terms of 3 to 9 years on the counts of rape in the second degree and sodomy in the second degree, with lesser concurrent sentences on the remaining convictions.

 On this appeal, defendant contends that County Court improperly granted the People's motion for reargument because the People's papers in opposition to his suppression motion failed to raise any facts to controvert his allegation that his Miranda rights had been violated.   It is well settled, however, that, pursuant to CPL 710.60, a hearing is required on a suppression motion whenever the People, in their motion papers, “refuse to concede the truth of facts alleged by defendant” (People v. Weaver, 49 N.Y.2d 1012, 1013, 429 N.Y.S.2d 399, 406 N.E.2d 1335;  see People v. Letts, 156 A.D.2d 868, 870, 550 N.Y.S.2d 90;  People v. Cole, 97 A.D.2d 886, 470 N.Y.S.2d 705).   Because the People's motion papers on the suppression motion specifically controverted defendant's factual allegations, a hearing on the motion was required.

The People concede that defendant's sentences of 3 to 9 years on the rape and sodomy convictions are illegal.   Defendant was convicted of rape in the second degree, a class D felony (see Penal Law § 130.30), and sodomy in the second degree, also a class D felony (see Penal Law § 130.45).   Neither of these crimes are considered violent felonies (see Penal Law § 70.02), and defendant was not sentenced as a second felony offender (see Penal Law § 70.06) or persistent felony offender (see Penal Law § 70.10).   Under these circumstances, County Court was not permitted to impose sentences exceeding a maximum of seven years (see Penal Law § 70.00[2][d] ).  Accordingly, we must vacate the sentences on these counts and remit to County Court for resentencing (see People v. Maynard, 295 A.D.2d 805, 806, 743 N.Y.S.2d 912;  People v. Phillip, 279 A.D.2d 802, 804, 718 N.Y.S.2d 727, lv. denied 96 N.Y.2d 905, 730 N.Y.S.2d 803, 756 N.E.2d 91;  compare People v. Roseboom, 167 A.D.2d 784, 785, 562 N.Y.S.2d 893).

ORDERED that the judgment is modified, on the law, by vacating the sentences imposed upon defendant for counts one and three of the indictment;  matter remitted to the County Court of Delaware County for resentencing on these counts;  and, as so modified, affirmed.

MERCURE, J.

CARDONA, P.J., SPAIN, CARPINELLO and KANE, JJ., concur.