You are here: / / DUE TO AN APPARENT DRAFTING ERROR, A 16-YEAR SENTENCE IS VALID FOR A FIRST...
, ,

DUE TO AN APPARENT DRAFTING ERROR, A 16-YEAR SENTENCE IS VALID FOR A FIRST TIME VIOLENT FELONY OFFENDER BUT IS ILLEGAL (EXCESSIVE) FOR A SECOND VIOLENT FELONY OFFENDER; THE FACIALLY ILLEGAL SENTENCE MUST BE VACATED; THE ERROR NEED NOT BE PRESERVED (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence, determined the sentence was illegal due to an apparent drafting error. The court noted the error need not be preserved for appeal:

… [T]he 16-year determinate sentence of imprisonment imposed by County Court is illegal. Had defendant been sentenced as a first-time violent felony offender, the court could have imposed a determinate sentence between 7 and 20 years of imprisonment for the conviction of attempted aggravated assault upon a police officer (see Penal Law § 70.02 [3] [b] [ii]). As a second violent felony offender convicted of a class C violent felony, however, defendant faced a determinate sentence of between 7 and 15 years (§ 70.04 [3] [b]). Thus, although seemingly a statutory anomaly resulting from a drafting error … , the 16-year sentence is illegal because it exceeds the maximum sentence permitted by the unambiguous statutory text based on defendant’s predicate felony offender status. “Although [that] issue was not raised before the [sentencing] court . . . , we cannot allow an [illegal] sentence to stand” … . We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing … . People v Barnes, 2025 NY Slip Op 02694, Fourth Dept 5-2-25

Practice Point: A statutory limit placed on a sentence must be complied with by the judge even where, as here, the limit is an obvious drafting error.

 

You might also like
JUDGE PROHIBITED FROM ADDING PROBATION TO DEFENDANT’S SENTENCE OUTSIDE OF DEFENDANT’S PRESENCE, ONCE DEFENDANT WAS RELEASED FROM JAIL ANY ATTEMPT TO INCREASE HIS SENTENCE PRECLUDED BY DOUBLE JEOPARDY RULE.
SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT).
MOTIONS FOR LEAVE TO FILE LATE NOTICES OF CLAIM IN THIS “POLLUTION ESCAPING FROM A LANDFILL” CASE SHOULD HAVE BEEN GRANTED; THE STATUTE OF LIMITATIONS HAD BEEN TOLLED BY THE FILING OF A FEDERAL CLASS ACTION SUIT; ALTHOUGH THERE WAS NO ADEQUATE EXCUSE, THE RESPONDENT WAS AWARE OF THE CLAIMS AND COULD NOT DEMONSTRATE PREJUDICE FROM THE DELAY (FOURTH DEPT).
ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER.
SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, SEARCHED THE RECORD AND ISSUED A DECLARATORY JUDGMENT ALLOWING PLANTIFFS TO PAVE AN EASEMENT (FOURTH DEPT).
SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT).
THE POLICE DID NOT HAVE A REASONABLE SUSPICION DEFENDANT WAS ARMED AND THEREFORE SHOULD NOT HAVE ATTEMPTED TO FRISK HIM; THE POLICE DID NOT HAVE PROBABLE CAUSE TO ARREST DEFENDANT WHEN HE THREW HIS COAT AT AN OFFICER AND RAN BECAUSE THE POLICE WERE NOT AUTHORIZED TO ATTEMPT THE FRISK; INDICTMENT DISMISSED; AN APPELLATE COURT CANNOT CONSIDER A THEORY WHICH WOULD SUPPORT DENIAL OF SUPPRESSION BUT WHICH WAS NOT RAISED BY THE PEOPLE BELOW (FOURTH DEPT).
EVIDENCE OF ROUTINE MAINTENANCE OF THE PARKING LOT WHERE PLAINTIFF ALLEGEDLY FELL, I.E. EVIDENCE OF HABIT, PROPERLY ADMITTED IN THIS ICE AND SNOW SLIP AND FALL CASE (FOURTH 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

THE QUESTIONING OF DEFENDANT CONTINUED DESPITE HER REPEATED STATEMENTS THAT... THE CASE WAS REMITTED TO SUPREME COURT TO PROCURE A RULING ON WHETHER DEFENDANT...