You are here: / / THE STATUTORY PROCEDURE FOR SENTENCING A DEFENDANT AS A PERSISTENT FELONY...
,

THE STATUTORY PROCEDURE FOR SENTENCING A DEFENDANT AS A PERSISTENT FELONY OFFENDER WAS NOT FOLLOWED BY THE JUDGE; SENTENCE VACATED (SECOND DEPT).

The Second Department, vacating defendant’s sentence, determined the judge did not follow the procedure for sentencing a defendant as a persistent felony offender:

The Supreme Court erred in failing to comply with the procedural requirements of Penal Law § 70.10(2) when resentencing the defendant as a persistent felony offender. The procedure for determining whether a defendant may be subjected to increased punishment as a persistent felony offender requires a two-pronged analysis (see CPL 400.20[1] …). “Initially, the court must determine whether the defendant is a persistent felony offender as defined in subdivision 1 of section 70.10 of the Penal Law, namely, that he [or she] previously has been convicted of at least two felonies, and secondly, the court must determine if it ‘is of the opinion that the history and character of the defendant and the nature and circumstances of his [or her] criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest'” … . Before imposing such sentence, “the court is obliged to set forth on the record the reasons it found this second element satisfied” … .

Here, the Supreme Court failed to comply with the second prong of the analysis by failing to set forth, on the record, the reasons why it was “of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate[d] that extended incarceration and life-time supervision [would] best serve the public interest” (Penal Law § 70.10[2] …). People v Acevedo, 2024 NY Slip Op 02927, Second Dept 5-29-24

Practice Point: A judge’s failure to set forth on the record the reasons for sentencing defendant as a persistent felony offender will result in vacation of the sentence and remittal.

 

You might also like
PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IN THIS FALLING OBJECT CASE; DEFENDANTS DID NOT DEMONSTRATE THE JOB WAS NOT A HARD HAT JOB PRECLUDING DISMISSAL OF PLAINTIFF’S LABOR LAW 241(6) CAUSE OF ACTION (SECOND DEPT).
MOTION TO VACATE DEFENDANT’S CONVICTION FOR A 1991 MURDER PROPERLY GRANTED BASED IN PART ON SUBSEQUENT SERIOUS MISCONDUCT BY ONE OF THE POLICE INVESTIGATORS, CRITERIA FOR NEWLY DISCOVERED EVIDENCE IN THIS CONTEXT EXPLAINED (SECOND DEPT).
People Could Not Appeal Judge’s Vacation of Defendant’s Conviction and Sentencing as a Youthful Offender—No Statute Allows Such an Appeal
QUESTION OF FACT WHETHER A CONTRACTOR WAS LIABLE TO A SUBCONTRACTOR FOR LAUNCHING AN INSTRUMENT OF HARM; THE SUBCONTRACTOR WAS INJURED ATTEMPTING TO FIX THE PROBLEM ALLEGEDLY CREATED BY THE CONTRACTOR (SECOND DEPT).
DEFENDANTS’ FAILURE TO ANSWER THE FORECLOSURE COMPLAINT WAIVED THE STATUTE OF LIMITATIONS DEFENSE (SECOND DEPT).
Child’s Out-of Court Statements Sufficiently Corroborated
DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT DISMISSING THE “BAD FAITH” COMPLAINT–ALLEGING A BAD FAITH FAILURE TO SETTLE PLAINTIFF’S PERSONAL INJURY ACTION STEMMING FROM A TRAFFIC ACCIDENT–SHOULD HAVE BEEN GRANTED (SECOND DEPT).
REFEREE’S FINDINGS WERE BASED UPON HEARSAY PROVIDED BY THE BANK IN THIS FORECLOSURE ACTION; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PHYSICAL INCAPACITY CAN BE A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A... THE NEGOTIATED PLEA REQUIRED NO POST-PLEA ARRESTS; DEFENDANT WAS ARRESTED AFTER...