PEOPLE v. CASSESE (2009)

Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.), rendered February 8, 2007, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.   The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment is modified, on the law, by vacating the sentence imposed;  as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Dutchess County, for resentencing in accordance herewith.

 The County Court did not err in denying suppression of the physical evidence that the police seized when they searched the defendant's residence pursuant to a warrant based on probable cause (see People v. Corr, 28 A.D.3d 574, 575, 816 N.Y.S.2d 82;  People v. Andujar, 187 A.D.2d 436, 437, 590 N.Y.S.2d 734;  People v. Sharpe, 157 A.D.2d 808, 809, 550 N.Y.S.2d 410).

 However, the County Court erred in adjudicating the defendant a persistent violent felony offender pursuant to Penal Law § 70.08. It is apparent from the face of the record that the County Court lacked the authority to so adjudicate the defendant (see People v. Samms, 95 N.Y.2d 52, 57, 710 N.Y.S.2d 310, 731 N.E.2d 1118;  People v. Ramos, 45 A.D.3d 702, 703, 850 N.Y.S.2d 107).   Assuming that the information in the persistent violent felony offender statement dated December 21, 2006, was in a form admissible to discharge the People's burden of proof (see CPL 400.15;  compare People v. Faust, 235 A.D.2d 430, 431, 653 N.Y.S.2d 120;  with People v. Ortiz, 23 A.D.3d 499, 500, 805 N.Y.S.2d 609), the sum of all of the incarceration periods set forth in that statement do not amount to a sufficient tolling period so as to qualify the defendant's two 1976 convictions as predicate violent felony convictions under Penal Law § 70.04(1)(b)(iv) and (v) (see People v. Santiago, 28 A.D.3d 590, 590-591, 812 N.Y.S.2d 358;  People v. Jones, 16 A.D.3d 701, 791 N.Y.S.2d 445;  People v. Stanley, 12 A.D.3d 467, 786 N.Y.S.2d 533;  cf. People v. Jones, 277 A.D.2d 329, 330, 716 N.Y.S.2d 79;   People v. Faust, 235 A.D.2d 430, 431, 653 N.Y.S.2d 120).   Furthermore, it is uncontested that the People withdrew their application as to the 1984 conviction for attempted robbery.   Under the circumstances, the record does not establish that the defendant meets the definition of a persistent violent felony offender (see Penal Law § 70. 08).

In light of the foregoing, the defendant's contention that his sentence was excessive is academic.   The defendant's remaining contentions are without merit.