You are here: / / THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED AS A SECOND VIOLENT FELONY...
,

THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED AS A SECOND VIOLENT FELONY OFFENDER NEED NOT BE PRESERVED FOR APPEAL; DEFENDANT COMMITTED THE INSTANT OFFENSE BEFORE HE WAS SENTENCED ON THE PRIOR VIOLENT FELONY CONVICTION; SECOND VIOLENT FELONY OFFENDER ADJUDICATION VACATED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, noted that the contention defendant was illegally sentenced as a second violent felony offender need not be preserved for appeal:

As the People properly concede, the defendant’s contention that he was illegally sentenced as a second violent felony offender is not subject to the preservation rule … . Here, the defendant was illegally sentenced as a second violent felony offender since he committed the instant offense before he was sentenced on the prior violent felony conviction … . Thus, the prior violent felony conviction cannot serve as a predicate violent felony offense for sentencing purposes (see Penal Law § 70.04[1][b][ii]). People v Lynch, 2022 NY Slip Op 06141, Second Dept 11-2-22

Practice Point: Here the defendant committed the instant offense before he was sentenced on the prior violent felony. Therefore he should not have been adjudicated a second violent felony offender. The issue need not be preserved for appeal.

 

You might also like
FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO DETERMINE PARENTAL ACCESS TO THE PARTIES AND SHOULD NOT HAVE MADE FINDINGS IN THE ABSENCE OF A HEARING (SECOND DEPT).
Question of Fact Whether Property Owners Owed a Duty to Protect Plaintiff from an Assault During a Fair on the Premises
ALTHOUGH THE CONDOMINIUM WAS OCCUPIED BY PLAINTIFFS’ DAUGHTER WHEN THE PIPE BROKE, THE INSURER WAS ENTITLED TO RESCIND THE POLICY BECAUSE THE PLAINTIFFS REPRESENTED THE CONDOMINIUM WOULD BE OCCUPIED BY THEM (SECOND DEPT).
THE JUDGE SHOULD NOT HAVE, SUA SPONTE, IMPOSED AN INJUNCTION AND DETERMINED ISSUES OF FACT; NO MOTION WAS BEFORE THE COURT AND NO HEARING WAS HELD (SECOND DEPT).
Four-Month Statute of Limitations for Challenging Termination of a Firefighter Runs from the Effective Date of Termination, Not the Date of Notification
FOR CAUSE CHALLENGES TO TWO JURORS WHO WERE UNABLE TO UNDERSTAND THE PEOPLE’S BURDEN OF PROOF SHOULD HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH PLAINTIFF WAS WORKING ON DEFENDANT’S PRIVATE RESIDENCE WHEN INJURED, THE HOMEOWNER’S EXEMPTION TO LABOR LAW 241(6) LIABILITY MAY NOT APPLY BECAUSE PLAINTIFF WAS EMPLOYED AS A CARPENTER BY DEFENDANT AND DEFENDANT MAY HAVE BEEN DIRECTING AND SUPERVISING THE WORK; SIMILARLY, DEFENDANT WAS NOT ENTITLED TO DISMISSAL OF THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (SECOND DEPT).
THE MOTION TO AMEND THE COMPLAINT TO IDENTIFY “JOHN DOE” “JANE DOE” DEFENDANTS AS POLICE OFFICERS IN THIS CIVIL RIGHTS CASE SHOULD NOT HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD EXPIRED AND THE RELATION-BACK DOCTRINE DOES NOT APPLY (SECOND 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

A MOTION TO VACATE AN ORDER SHOULD BE TRANSFERRED TO THE JUDGE WHO MADE THE... AN APPELLATE COURT MAY CONSIDER A SUPPRESSION RULING GROUNDED ON A THEORY NOT...