People v. Ritorto

Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Del Giudice, J.), rendered January 17, 2012, convicting him of attempted burglary in the second degree, upon his plea of guilty, and sentencing him, as a persistent violent felony offender, to an indeterminate term of imprisonment of 15 years to life.

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, Kings County, for resentencing in accordance herewith.

As the People correctly concede, the defendant was improperly adjudicated a persistent violent felony offender based on the convictions enumerated in the statement filed by the People pursuant to CPL 400.16 (see Penal Law §§ 70.04 [1] [b] [ii]; 70.08 [1] [a], [b]; People v Morse, 62 NY2d 205 , 218-219 [1984]; People v Cooper, 245 AD2d 569 [1997]; People v Melero, 182 AD2d 839 , 840 [1992]; People v Sykes, 110 AD2d 918 [1985]). Accordingly, the sentence must be vacated and the matter remitted to the Supreme Court, Kings County, for resentencing, at which time the People shall, if the defendant is alleged to be a persistent violent felony offender, file a new persistent violent felony offender statement with the applicable offenses (see People v Helmus, 125 AD3d 884 [2015] [decided herewith]; People v Cooper, 245 AD2d at 569 ; People v Sykes, 110 AD2d at 918 ; see also People v Sanchez, 131 AD2d 605 , 606 [1987]). Rivera, J.P., Hall, Austin and Roman, JJ., concur.