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People v. Rivera

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 16, 2009

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
GILBERT RIVERA, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Charles J. Tejada, J.), rendered February 20, 2007, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 6 years, unanimously modified, on the law, to the extent of remanding for resentencing, and otherwise affirmed.

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.

Gonzalez, P.J., Nardelli, Catterson, Moskowitz, Renwick, JJ.

2631/06

The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion (see People v Hayes, 97 NY2d 203 [2002]; People v Walker, 83 NY2d 455, 458-459 [1994]; People v Pavao, 59 NY2d 282, 292 [1983]). The court limited the scope of permissible inquiry into defendant's extensive record, and the permitted inquiries were not unduly prejudicial.

The People concede that at sentencing the court and counsel were under the misimpression that defendant was a second felony drug offender whose prior felony conviction was a violent felony, a status requiring a minimum sentence of six years in this case, whereas the predicate conviction at issue does not in fact qualify as a violent felony. The People also concede that the provision for postrelease supervision was defective under People v Sparber (10 NY3d 457 [2008]). Accordingly, defendant is entitled to be sentenced, within the court's discretion, within the range permitted for a second felony drug offender (see Penal Law § 70.70[3]), and to have the postrelease supervision component of his sentence pronounced orally.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090416

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