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SECOND FELONY DRUG OFFENDER SENTENCE: COURT ABUSED ITS DISCRETION BY PROMISING TO OBTAIN TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE THE PRIOR CONVICTION AND THEN DECIDING NOT TO ORDER THE TRANSCRIPTS.

The Fourth Department determined defendant, who was sentenced as a second felony drug offender, should have been afforded a hearing to substantiate a constitutional challenge to a prior conviction. County Court indicated the transcripts of the prior proceedings would be provided, but ultimately sentenced defendant without providing them:

 

… [T]he court abused its discretion in sentencing him as a second felony drug offender without affording him the opportunity to substantiate his constitutional challenge to the predicate felony conviction with the transcripts of the proceeding underlying that conviction and without holding a hearing for that purpose. Inasmuch as defendant did not controvert the existence of the predicate felony conviction, it was incumbent upon defendant “to allege and prove facts to establish his claim that the conviction was unconstitutionally obtained” … . The record establishes that defendant, who was proceeding pro se, alleged certain constitutional violations in writing, and repeatedly and timely requested the necessary transcripts in order to prepare his constitutional challenge. The court promised to obtain the transcripts for defendant, acknowledged on the scheduled hearing date its oversight in failing to act on that promise and, upon being challenged by defendant at a rescheduled hearing, ultimately admitted that, after months of adjournments, it had decided not to order the transcripts as it had previously promised. Although there is no requirement that a trial court obtain such transcripts on a defendant’s behalf, we conclude that, under the circumstances of this case, the court should not have proceeded to sentencing without at least attempting to obtain the transcripts sought by defendant and providing defendant a hearing on his constitutional challenge to the predicate felony conviction … . People v Farmer, 2016 NY Slip Op 01095, 4th Dept 2-11-16

 

CRIMINAL LAW (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SENTENCING (SECOND FELONY DRUG OFFENDER SENTENCE, COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)/SECOND FELONY DRUG OFFENDER (COURT ABUSED DISCRETION BY NOT ORDERING TRANSCRIPTS TO ALLOW DEFENDANT TO CHALLENGE PRIOR CONVICTION)

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