People v. Hines 90 A.D.2d 621

Appeal from a judgment of the County Court of Chemung County (Monroe, J.), rendered August 5, 1981, convicting defendant upon his plea of guilty of the crimes of attempted rape in the first degree and assault in the second degree. Defendant alleges that the trial court erred in (1) denying suppression of certain statements of defendant and the display of his tongue; (2) refusing defendant permission to withdraw his plea of guilty and his alleged deprivation of counsel at that time; (3) finding defendant to be a second felony offender; and (4) imposing an unduly harsh and excessive sentence. The judgment should be modified by vacating only the sentence imposed on defendant and remanding the matter for a new predicate felony hearing and for resentencing, and, except as so modified, affirmed. The trial court erroneously received into evidence, over defendant’s objection at the predicate felony hearing, certificates of conviction from South Carolina which were not properly authenticated as required by CPLR 4540. The certificates of conviction, while attested to, lacked the certificate, under seal, showing that the attestor was the legal custodian of the records and that this signature was genuine as required by CPLR 4540 (subd [c]). This defect requires vacation of the sentence imposed (People v Gonzalez, 64 AD2d 534; People v Dugas, 35 AD2d 732). The People, however, should have the opportunity to overcome the technical shortcomings of their proof in a new hearing (see People v Gonzalez, supra). We find no merit in the other claims of error. Judgment modified, on the law, by vacating the sentence and remitting the matter to the County Court of Chemung County for a new predicate felony hearing in accordance herewith and for resentencing, and, as so modified, affirmed. Sweeney, J. P., Kane, Main, Mikoll and Yesawich, Jr., JJ., concur.