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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Charles JOHNSON, Defendant-Appellant.

Decided: August 03, 2000

SULLIVAN, P.J., ROSENBERGER, NARDELLI, ELLERIN and WALLACH, JJ. Timothy W. Lewis, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Felice Shea, J.), rendered March 26, 1999, convicting defendant, upon his plea of guilty, of robbery in the first degree, and sentencing him, as a second felony offender, to a term of 8 years, unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of vacating the sentence and remanding the matter for resentencing, and otherwise affirmed.

Defendant pleaded guilty in March 1999 to robbery in the first degree in full satisfaction of the indictment filed against him.   After acknowledging that he had discussed the plea with his attorney, that he understood the rights he was giving up by pleading guilty, and that he was pleading guilty voluntarily, he admitted that he had forcibly stolen money from a United Parcel Service delivery man while displaying a pistol.   In exchange for his plea, the court promised defendant a term of 8 years, the minimum for a second felony offender.   No predicate felony statement was filed and defendant was not provided an opportunity to challenge such a statement when he appeared for sentencing on March 26, 1999, at which time the court sentenced him to the promised term of 8 years.

As the People concede, because the predicate felony statement was not filed with the court before sentence was imposed, as required by CPL 400.21, the case must be remitted to afford defendant an opportunity to controvert the statement (see People v. Davis, 240 A.D.2d 309, 659 N.Y.S.2d 437;  lv. denied 91 N.Y.2d 871, 668 N.Y.S.2d 570, 691 N.E.2d 642).