PEOPLE v. SMITH (1999)

Appeal by the defendant from an amended judgment of the Supreme Court, Kings County (Minardo, J.), rendered April 1, 1997, convicting him of burglary in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the amended judgment is affirmed.

 On June 17, 1996, the defendant pleaded guilty to burglary in the third degree, and on June 27, 1996, he was sentenced to 60 days imprisonment and five years probation.   It was subsequently discovered that the defendant's real name is Jerry Williams, and that he was a second felony offender.   On April 1, 1997, the Supreme Court denied the defendant's application to withdraw his plea of guilty.   In doing so, the Supreme Court noted that at the time the defendant pleaded guilty, he was silent when the court clerk stated that if it was discovered that he had been previously convicted of a felony, he would be subject to different or additional punishment.   The defendant was then sentenced to an indeterminate term of three to six years imprisonment.

 Contrary to the defendant's contention, the Supreme Court properly refused to allow him to withdraw his plea of guilty, and resentenced him as a second felony offender.   The original sentence promise was rendered unlawful by the discovery of the defendant's status as a second felony offender (see, People v. Chance, 254 A.D.2d 115, 679 N.Y.S.2d 289;  see also, People v. Black, 253 A.D.2d 714, 678 N.Y.S.2d 254;  People v. Smith, 223 A.D.2d 465, 637 N.Y.S.2d 61).

MEMORANDUM BY THE COURT.