People v. Smith 59 A.D.2d 618

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered January 27, 1977, convicting him of possession of weapons, etc., as a felony, upon his plea of guilty, and sentencing him as a second felony offender. Judgment affirmed as to the conviction; judgment reversed as to the sentence, on the law and as a matter of discretion in the interest of justice, and case remitted to the Criminal Term for resentence in accordance herewith. The record reveals that prior to being sentenced, defendant-appellant moved that the Judge, who had taken his plea on the weapons charge in February, 1974, disqualify himself because, as a former Assistant District Attorney, the Judge had prosecuted defendant for a prior offense in 1964. (The defendant did not raise this issue when he entered his plea.) Thereafter, the Judge conducted a second felony offender hearing, pursuant to CPL 400.21, held that defendant was a second felony offender and imposed sentence. The predicate offense upon which the Judge based his determination that defendant was a second felony offender, was the same one he had prosecuted defendant for in 1964. In view of the foregoing, we direct that the case be remitted to Criminal Term for a de novo second felony offender hearing, and for resentence, before another Judge (cf. People v Tartaglia, 35 NY2d 918). We also recommend that before resentence, Criminal Term order an up to date probation report. Cohalan, J. P., Titone, Hawkins and Suozzi, JJ., concur.