PEOPLE v. THOMPSON (2006)

Appeal by the defendant from a judgment of the County Court, Nassau County (Carter, J.), rendered January 25, 2005, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the sentence and the adjudication of the defendant as a prior felony offender;  as so modified, the judgment is affirmed and the matter is remitted to the County Court, Nassau County, for resentencing in accordance herewith.

 The defendant's contentions that his plea of guilty was not knowingly, voluntarily, and intelligently made, and that he was not provided with effective assistance by counsel, are either unpreserved for appellate review because he failed to move to withdraw his plea or vacate the judgment of conviction, or cannot be raised on direct appeal since they are based on matter dehors the record (see CPL 470.05[2];  People v. Catts, 26 A.D.3d 341, 812 N.Y.S.2d 549;  People v. Spotards, 23 A.D.3d 586, 804 N.Y.S.2d 264;  People v. Leo, 255 A.D.2d 458, 680 N.Y.S.2d 859).   In any event, the record indicates that the defendant knowingly, voluntarily, and intelligently entered his plea of guilty (see People v. Fiumefreddo, 82 N.Y.2d 536, 543-547, 605 N.Y.S.2d 671, 626 N.E.2d 646;  People v. Sioleski, 21 A.D.3d 501, 799 N.Y.S.2d 812, lv. denied 5 N.Y.3d 856, 806 N.Y.S.2d 176, 840 N.E.2d 145;  People v. Leo, supra ), and, insofar as we can tell from the record, that he was provided with meaningful assistance of counsel (see People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

 Nonetheless, as the People correctly concede, the defendant was improperly adjudicated a prior felony offender, since the sentence imposed upon the defendant's prior conviction was not imposed before the commission of the present felony (see Penal Law § 70.06[1][b][ii];  People v. Acevedo, 292 A.D.2d 538, 739 N.Y.S.2d 582).   Therefore, the defendant's adjudication as a prior felony offender must be vacated, and the matter remitted to the County Court, Nassau County, for the resentencing of the defendant as a first-time felony offender.   All issues concerning the appropriate sentence to be imposed may be raised before the sentencing court upon remittal.

The defendant's contention that the sentence is otherwise excessive is academic.   The defendant's remaining contentions are without merit (see Penal Law § 60.04[3];  L. 2004, ch. 738, § 41[d-1];  see also People v. Evans, 16 A.D.3d 595, 596, 792 N.Y.S.2d 124).