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FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER IN THE INTEREST OF JUSTICE.

The Fourth Department determined defendant was not accorded the opportunity to contest the constitutionality of a prior conviction. Therefore the sentence as a second felony offender was vacated even though the error was not preserved for review (interest of justice). Defendant was not provided with a statement of conviction. The fact that the prior conviction was an element of the charged offense in a special information did not obviate the need for a statement of conviction:

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…[D]defendant contends that the People failed to comply with the procedural requirements of CPL 400.15 in seeking to have him sentenced as a second violent felony offender inasmuch as they did not file a predicate felony offender statement as required by CPL 400.15 (2). Although that contention is not preserved for our review… , we nonetheless exercise our discretion to review it as a matter of discretion in the interest of justice … . Contrary to the assertion of the prosecutor at sentencing, “the need for a predicate felony offender statement was not obviated by defendant’s pretrial admission to a special information setting forth his prior felony conviction as an element of a count charging criminal possession of a weapon. The special information did not permit defendant to raise constitutional challenges to his prior conviction, as he had the right to do before being sentenced as a second felony offender” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for the filing of a predicate felony offender statement pursuant to CPL 400.15 and resentencing. People v Edwards, 2017 NY Slip Op 04983, 4th Dept 6-16-17

CRIMINAL LAW (SENTENCING, SECOND FELONY OFFENDER, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)/STATEMENT OF CONVICTION (SECOND FELONY OFFENDER, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)/SECOND FELONY OFFENDER (SENTENCING, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, FAILURE TO PROVIDE DEFENDANT WITH A STATEMENT OF CONVICTION REQUIRED VACATION OF HIS SENTENCE AS A SECOND FELONY OFFENDER)

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