People v. Kilgore (199 A.D.2d 1008, 1993)

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Onondaga County Court for further proceedings in accordance with the following Memorandum: We reject the People’s contention that defendant waived his right to appeal his sentencing as a predicate felon without a hearing when he accepted the plea agreement. The right to challenge the legality of a sentence is not subject to waiver (see, People v Callahan, 80 NY2d 273, 281; People v Francabandera, 33 NY2d 429).

County Court erred in summarily refusing to consider the constitutional challenge of defendant to his prior felony conviction. When the constitutionality of a predicate felony is attacked, the sentencing court must conduct a hearing prior to imposing a second felony offender sentence (CPL 400.21 [5]; People v Longboat, 154 AD2d 916). We, therefore, modify the judgments by vacating defendant’s sentences and remit the matters to the sentencing court for a hearing to determine the merits of the challenge to defendant’s predicate felony conviction (see, CPL 400.21 [7] [b]). (Appeal from Judgment of Onondaga County Court, Cunningham, J.—Criminal Sale Controlled Substance, 3rd Degree.) Present—Denman, P. J., Callahan, Pine, Doerr and Boehm, JJ.