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 January 5, 2012
Andrias, J.P., Saxe, Sweeny, Acosta, Manzanet-Daniels, JJ.
Order, Supreme Court, New York County (Lewis Bart Stone, J.), entered on or about January 14, 2010, which denied defendant's CPL 440.20 motion to set aside a sentence of the same court (James A. Yates, J.), imposed June 26, 2007, as amended August 24, 2007, unanimously reversed, the motion granted, defendants' second violent felony offender adjudication and sentence vacated, and the matter remanded for resentencing.
On February 27, 2007, defendant was convicted, after a jury trial, of robbery in the first degree, robbery in the third degree and criminal possession of a weapon in the third degree. On June 26, 2007, he was adjudicated a second violent felony offender, and sentenced to 13 years in prison on the robbery in the first degree count, with concurrent time on the other charges, and five years of postrelease supervision.
On or about April 6, 2009, defendant moved to set aside his sentence pursuant to CPL 440.20 on the ground that his 2004 predicate violent felony conviction was unconstitutionally obtained because he was not advised during the plea allocution that the sentence would include a period of postrelease supervision (see People v Catu, 4 NY3d 242 ). The trial court denied the motion as procedurally barred because defendant failed to appeal the 2004 conviction. We now reverse.
Defendant's failure to appeal the 2004 conviction did not constitute a forfeiture of his right to independently challenge its constitutionality within the context of a predicate felony proceeding (see People v Johnson, 196 AD2d 408 , lv denied 82 NY2d 806  ["Notwithstanding his failure to appeal from the 1985 conviction, defendant had an independent statutory right to challenge its use as a predicate conviction on the ground it was unconstitutionally obtained"]). Although the absence of an appeal may be a relevant consideration in predicate felony offender proceedings, it is not an automatic bar to challenging the constitutionality of a predicate conviction (see People v Abdus-Samad, 69 AD3d 516, 517 , lv denied 15 NY3d 746 ).
The People argue that the CPL 440.20 motion must be denied on the ground that defendant waived his right to challenge the 2004 conviction by failing to raise the argument at the appropriate time, which was the time of the 2007 second violent felony offender adjudication (see CPL 400.15[b]; People v Odom, 63 AD3d 408 , lv denied 13 NY3d 798 ). However, the People were required to preserve such an argument for review by this Court (see People v Chavis, 91 NY2d 500, 506 ) and failed to do so. Before the trial court, misapplying Odom, the People only argued that defendant was procedurally barred from challenging the 2004 prior violent felony conviction by failing to appeal from that conviction. The trial court relied solely on that ground to deny the motion and this Court is without authority to affirm an order based on an issue of law or fact that the trial court did not hear and determine against the appellant, and we cannot invoke an alternative ground for affirmance (see CPL 470.15; People v Concepcion, 17 NY3d 192 ; People v LaFontaine, 92 NY2d 470 ). For the same reason, it is beyond our power to review the People's argument, also raised for the first time on appeal, that a Catu issue should not affect the constitutionality, for predicate felony purposes, of defendant's 2004 conviction.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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