You are here: / / FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE...
, ,

FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT).

The Third Department determined the failure to file a predicate felony statement required resentencing, despite the failure to preserve the issue by an appropriate motion:

Defendant contends, among other things, that the resentence is invalid because a predicate felony statement was not filed in accordance with CPL 400.21 (2) before he was sentenced as a second felony drug offender … . Although this claim has not been preserved for our review due to defendant’s failure to make an appropriate motion … , under the particular circumstances presented, we exercise our discretion in the interest of justice to take corrective action … . The People concede and the record reveals that a predicate felony statement was never filed as is required by CPL 400.21 (2). In addition, there is no indication that defendant had notice that he would be sentenced as a second felony drug offender when he admitted to the probation violations or at resentencing. Consequently, defendant did not have an opportunity to contest his prior convictions. In view of this, the resentence must be vacated and the matter remitted to County Court for resentencing … . People v Fenner, 2017 NY Slip Op 06483, Third Dept 9-14-17

CRIMINAL LAW (FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/EVIDENCE (CRIMINAL LAW, PREDICATE FELONY, SENTENCING, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/APPEALS (CRIMINAL LAW, PREDICATE FELONY STATEMENT, PRESERVATION, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/SENTENCING (PREDICATE FELONY STATEMENT, FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))/PREDICATE FELONY STATEMENT (FAILURE TO FILE PREDICATE FELONY STATEMENT REQUIRED RESENTENCING DESPITE FAILURE TO MAKE AN APPROPRIATE MOTION TO PRESERVE THE ERROR (THIRD DEPT))

You might also like
PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT SHOULD HAVE BEEN DENIED AND DEFENDANT’S CROSS MOTION TO RENEW SHOULD HAVE BEEN GRANTED, CRITERIA EXPLAINED; E-FILING WAS VOLUNTARY IN CHENANGO COUNTY SO FAILURE TO E-FILE WAS NOT A GROUND FOR REJECTION OF DEFENDANT’S MOTION PAPERS (THIRD DEPT).
HABEAS CORPUS PETITION ORDERING THE RELEASE OF A PRISONER BECAUSE OF THE RISK POSED BY COVID-19 SHOULD NOT HAVE BEEN GRANTED; THE PETITION DID NOT DEMONSTRATE THE PRISON OFFICIALS WERE DELIBERATELY INDIFFERENT TO THE RISK (THIRD DEPT).
THE MAJORITY AFFIRMED DEFENDANT’S DRIVING-RELATED RECKLESS-ENDANGERMENT-FIRST-DEGREE CONVICTION STEMMING FROM HIS STRIKING SEVERAL CARS, CAUSING ONE TO FLIP, AND CRASHING INTO A HOUSE; TWO DISSENTERS ARGUED THE PROOF DID NOT SUPPORT THE “DEPRAVED INDIFFERENCE” ELEMENT OF THE OFFENSE (THIRD DEPT). ​
Denial of Benefits Affirmed In Spite of Conflicting Medical Evidence
BENEFICIARY OF DECEASED CLAIMANT IS ENTITLED TO THE REMAINING WEEKS OF CLAIMANT’S NONSCHEDULE PERMANENT DISABILITY AWARD WHERE CLAIMANT’S DEATH WAS NOT RELATED TO THE COMPENSATED INJURY (THIRD DEPT).
Sales Rep Who Worked from Home Was an Employee
APPELLATE COURT EXERCISED ITS POWER TO REDUCE A SENTENCE EVEN THOUGH THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION, NOTING EXTRAORDINARY CIRCUMSTANCES (THIRD DEPT).
PLAINTIFF’S “INADEQUATE FALL-PROTECTION” CAUSES OF ACTION SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE; THEREFORE PLAINTIFF’S AFFIDAVIT FROM A NURSE WAS NOT SUFFICIENT TO OVERCOME DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT WHICH WAS SUPPORTED BY AN AFFIDAVIT FROM A PHYSICIAN (THIRD DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN AWARDED TO... FINDING THAT CLAIMANT WAS CAPABLE OF PERFORMING LIGHT WORK WAS NOT SUPPORTED...