The People, etc., respondent, v. Layshawn Mitchell, appellant. (2010)

Submitted-December 1, 2009

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered November 13, 2006, convicting him of attempted sodomy in the first degree, upon his plea of guilty, and imposing sentence.

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 Supreme Court, Queens County, for resentencing in accordance herewith.

The defendant's contention that his plea was not voluntary because it was coerced is unpreserved for appellate review, since he did not move to withdraw his plea on that basis (see People v. Clarke, 93 N.Y.2d 904, 906;  People v. Lopez, 71 N.Y.2d 662, 665-666;  People v. Bolton, 63 AD3d 1087, lv denied 13 NY3d 834;  People v. Antoine, 59 AD3d 560).   In any event, his plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Garcia, 92 N.Y.2d 869, 870-871;  People v. Harris, 61 N.Y.2d 9, 17).

However, on the record before us, it is not clear whether the court sentenced the defendant as a persistent violent felony offender (see Penal Law § 70.08), or as a persistent felony offender (see Penal Law § 70.10).   Accordingly, we vacate the sentence and remit the matter to the Supreme Court, Queens County, for resentencing, including a determination and adjudication of the defendant's status under article 400 of the Criminal Procedure Law.

RIVERA, J.P., MILLER, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court