THE PEOPLE DID NOT HAVE THE DOCUMENT OFFERED TO PROVE DEFENDANT’S MASSACHUSETTS CONVICTION CERTIFIED PURSUANT TO CPLR 4540; SECOND FELONY OFFENDER SENTENCE VACATED (THIRD DEPT).
The Third Department, vacating defendant’s sentence as a second felony offender, determined the proof of the Massachusetts conviction which was the basis for the second felony offender status was deficient:
… [T]he People offered a copy of a “warrant” transferring defendant from local custody to state prison, as well as a copy of defendant’s public docket report. Both documents reflect defendant’s conviction in Massachusetts of armed robbery, bear the seal of the Massachusetts Superior Court and contain the signature of a court official attesting that such documents are true copies. However, the People’s submissions “lacked the certificate, under seal, showing that the attestor was the legal custodian of the records and that this signature was genuine as required by CPLR 4540 [c]” … As a result of such failure, we vacate defendant’s adjudication as a second felony offender, as well as the resulting sentence, and remit this matter to County Court for a new second felony offender hearing, at which time the People will have an opportunity to overcome the technical deficiencies in their proof … . People v Caraballo, 2023 NY Slip Op 01029, Third Dept 2-23-23
Practice Point: To prove a foreign conviction the relevant document must be certified in accordance with CPLR 4540 (c).
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