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THE ADDITIONAL FIVE-YEAR CONSECUTIVE SENTENCES PURSUANT TO PENAL LAW 265.09 (2) DID NOT APPLY TO FIVE COUNTS OF THE INDICTMENT; THE APPEAL OF AN ILLEGAL SENTENCE DOES NOT REQUIRE PRESERVATION (FOURTH DEPT).

The Fourth Department determined several of the additional consecutive five-year sentences pursuant to Penal Law 265.09( 2) were illegal. The court noted that preservation is not required for the appeal of an illegal sentence:

… [Penal Law 265.09(2)] provides in relevant part that, “[n]otwithstanding any other provision of law to the contrary, when a person is convicted of criminal use of a firearm in the first degree as defined in [Penal Law § 265.09 (1)], the court shall impose an additional consecutive sentence of five years to the sentence imposed on the underlying class B violent felony offense where the person convicted of such crime displays a loaded weapon from which a shot, readily capable of producing death or other serious injury may be discharged, in furtherance of the commission of such crime” … . …

… [T]he sentence enhancement provision does not apply to his conviction of burglary in the first degree under count 2… and robbery in the first degree under count 5 … . Given that the use or display of a firearm is an element of each of those crimes and “the use or display of that same firearm cannot also be the predicate for criminal [use] of a firearm in the first degree” … , neither of those crimes may serve as “the underlying class B violent felony offense” upon which the court could impose an additional consecutive sentence of five years … .

… [T]he sentence enhancement provision does not apply to his conviction of burglary in the first degree under count 3… . * * * Defendant’s conviction under Penal Law § 265.09 (1) (a) “did not involve the display of a loaded, operable weapon” … , and the victim—the only person other than defendant who was present in the room where the shooting occurred—had no recollection of defendant’s entry into the apartment or of the events that transpired during the shooting that caused his physical injuries … . People v Clea, 2025 NY Slip Op 05590, Fourth Dept 10-10-25

Practice Point: Consult this decision for insight into when the five-year consecutive-sentence enhancement for display of a fireman is not allowed by Penal Law 265.09 (2).

 

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