People v. Smith, 89 A.D.3d 963 (N.Y. App. Div. 2011). · Go Syfert
People v. Smith, 89 A.D.3d 963 (N.Y. App. Div. 2011). Cases Citing This Book View Copy Cite
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The People of the State of New York
v.
Thomas Smith
Appellate Division of the Supreme Court of the State of New York.
Nov 15, 2011.
89 A.D.3d 963
2011 N.Y. App. Div. LEXIS 8208
Cited by 1 opinion  |  Published

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.