People v. Williams (201 A.D.2d 289, 1994)

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered May 6, 1992, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the third degree, and sentencing him, as a persistent violent felony offender, to a term of from 3 years to life, unanimously modified, on the law, to the extent of vacating the sentence and remanding the matter for resentencing following the filing by the District Attorney of a statement pursuant to CPL 400.16 (persistent violent felony offender), and otherwise affirmed.

Defendant argues, and the People concede, that he was not properly sentenced. The prosecutor never filed a predicate violent felony conviction statement and the court never provided defendant an opportunity to review and challenge the statement, as required by CPL 400.16, before a defendant may be determined to be a persistent violent felony offender.

Defendant is in error, however, when he argues that his sentence should be vacated and the case remanded so that he can be sentenced as a first felony offender. Instead, as the People also concede, the case must be remanded so that defendant can be properly sentenced as a persistent violent felony offender upon the filing of a predicate violent felony conviction statement and inquiry by the court (People v Hemphill, 129 AD2d 460). Concur — Carro, J. P., Ellerin, Rubin, Nardelli and Tom, JJ.