| People v Simmons |
| 2019 NY Slip Op 05224 |
| Decided on June 27, 2019 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on June 27, 2019
Friedman, J.P., Gische, Kapnick, Singh, JJ.
9777 2601/15
v
Brandon Simmons, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Brent Ferguson of counsel), for respondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered September 20, 2016, convicting defendant, upon his plea of guilty, of assault in the first degree, and sentencing him, as a second felony offender, to a term of 12 years, unanimously modified to the extent of vacating the sentence and remanding for resentencing, including a predicate felony adjudication, and otherwise affirmed.
We note at the outset that defendant was adequately represented by counsel and was given an opportunity by the court to speak. The court also correctly determined that defendant was a second felony offender based on his Pennsylvania conviction. We adhere to our previous determination (expressed, not as "dicta" but as what was intended to be an alternative holding), that the Pennsylvania statute at issue (35 Pa Cons Stat § 780-113[a][30]) is the equivalent of a New York felony (People v Mulero , 251 AD2d 252 [1st Dept 1998], lv denied 92 NY2d 928 [1998]).
However, as the People concede, defendant is entitled to resentencing because he was not actually arraigned as a second felony offender and provided with an opportunity to controvert the allegations in the predicate felony statement. Because we are vacating the sentence, we find it unnecessary to address any other issues.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 27, 2019
CLERK