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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.

 

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