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THE COURT WAS NOT AUTHORIZED TO SENTENCE DEFENDANT AS A SECOND VIOLENT FELONY OFFENDER BECAUSE DEFENDANT WAS CONVICTED OF AN A FELONY; THE LENGTH OF DEFENDANT’S SENTENCE, HOWEVER, IS NOT AFFECTED (SECOND DEPT).

The Second Department noted the court was not authorized to sentence defendant as a second violent felony offender because he was convicted of an A felony:

… [T]he Supreme Court was not authorized to adjudicate the defendant a second violent felony offender, as the instant conviction was for a class A felony rather than a class B, C, D, or E felony (see Penal Law §§ 70.02[1]; 70.04[1][a]). Therefore, we vacate the defendant’s adjudication as a second violent felony offender. “However, since the statutory sentencing parameters for a second violent felony offender do not include any specifications as to proper sentences for a class A felony because that crime is more serious than the crimes specified in those parameters, the error could not have affected the sentence imposed to the defendant’s detriment” … . Furthermore, contrary to the defendant’s contention, the sentencing limitations provided in Penal Law § 70.30(1)(e) do not apply where the two or more crimes include, as here, a class A felony (see Penal Law § 70.30[1][e][i] …). People v Bell, 2020 NY Slip Op 06540, Second Dept 11-12-20

 

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