People v. Smith

At the resentencing proceeding ordered by this Court (see People v Smith, 25 AD3d 573 [2006]), the defendant challenged the constitutionality of two convictions that the People sought to utilize as predicate violent felony convictions. As to the conviction on indictment No. 13330/94, the defendant’s allegations in support of his contention that his plea of guilty had been coerced were insufficient to warrant a hearing, because the defendant’s factual allegations did not raise a question as to the voluntariness of his plea (cf. People v Grant, 61 AD3d 177, 182-183 [2009]). The defendant’s allegations with respect to the conviction on indictment No. 13791/91, however, were sufficient to warrant a hearing on whether his plea of guilty in that case was knowingly entered. The Supreme Court, therefore, should have conducted a hearing before resentencing the defendant as a persistent violent felony offender (see CPL 400.15, 400.20). Consequently, the resentence must be reversed and the matter remitted to the Supreme Court, Kings County, for a determination of the defendant’s status as a persistent violent felony offender (see People v Kilgore, 199 AD2d 1008 [1993]), to be followed by resentencing.

The defendant’s remaining contentions are without merit. Skelos, J.P, Hall, Lott and Roman, JJ., concur.