The Second Department, reversing Supreme Court, determined the failure to follow the statutory procedures for sentencing a persistent felony offender required that the motion to set aside the sentence be granted:
CPL 400.15 and 400.16 “govern the procedure that must be followed in any case where it appears that a defendant who stands convicted of a violent felony offense . . . has previously been subjected to two or more predicate violent felony convictions . . . and may be a persistent violent felony offender” (CPL 400.16[1]). Here, neither the People nor the Supreme Court complied with that mandatory procedure. Therefore, the sentence was “illegally imposed” (CPL 440.20[1]), regardless of whether the defendant is, in fact, a persistent violent felony offender (see Penal Law § 70.08[1]), and the Supreme Court should have granted the motion to set aside the sentence … . People v Rivera, 2016 NY Slip Op 07036, 2nd Dept 10-26-16
CRIMINAL LAW (FAILURE TO FOLLOW STATUTORY SENTENCING PROCEDURE FOR A PERSISTENT FELONY OFFENDER RENDERED SENTENCE “ILLEGALLY IMPOSED”)/SENTENCING (FAILURE TO FOLLOW STATUTORY SENTENCING PROCEDURE FOR A PERSISTENT FELONY OFFENDER RENDERED SENTENCE “ILLEGALLY IMPOSED”)/PERSISTENT FELONY OFFENDER (FAILURE TO FOLLOW STATUTORY SENTENCING PROCEDURE FOR A PERSISTENT FELONY OFFENDER RENDERED SENTENCE “ILLEGALLY IMPOSED”)