You are here: / / SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN...
,

SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT).

The Fourth Department noted than an illegal sentence must be corrected even where there has been a waiver of appeal, and even where the issue was not raised below or on appeal. Here defendant was sentenced as a second felony offender, which is not proper when the underlying felony is defined in the Correction Law, not in the Penal Law:

… [I]t is well settled that “even a valid waiver of the right to appeal will not bar [review of] an illegal sentence” … , and we note that the sentence imposed by the court on count three of the superior court information, i.e., a determinate term of incarceration for failure to register internet identifiers as a class D felony, is illegal. That crime is defined in the Correction Law, and “only a person convicted of a felony defined by the Penal Law may be sentenced as a second felony offender” to a determinate term of incarceration … . “Although [the] issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” … . People v Mcdonald, 2018 NY Slip Op 00657, Fourth Dept 2-2-18

CRIMINAL LAW (SECOND FELONY OFFENDERS, APPEALS, SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/SENTENCING (SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/SECOND FELONY OFFENDERS (SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/CORRECTIONS LAW (SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/ILLEGAL SENTENCE (SECOND FELONY OFFENDERS, APPEALS, SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))/INTERNET IDENTIFIERS, FAILURE TO REGISTER (CORRECTIONS LAW, SECOND FELONY OFFENDERS, APPEALS, SECOND FELONY OFFENDER STATUS CANNOT BE BASED UPON A FELONY DEFINED IN THE CORRECTIONS LAW, AS OPPOSED TO THE PENAL LAW, ILLEGAL SENTENCE MUST BE CORRECTED EVEN WHERE THERE IS A WAIVER OF APPEAL AND THE ISSUE WAS NOT RAISED BELOW OR ON APPEAL (FOURTH DEPT))

You might also like
AT THE FRYE HEARING, THE PEOPLE DEMONSTRATED THE ADMISSIBILITY OF THE RESULTS OF DNA ANALYSIS USING THE STRMIX DNA ANALYSIS PROGRAM (FOURTH DEPT).
No Legal Duty Owed Independent of Contract—Negligence Cause of Action Dismissed
FINDING THAT PETITIONER HAD NONCONSENSUAL SEX WITH ANOTHER COLLEGE STUDENT NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED AND RECORD EXPUNGED (FOURTH DEPT).
INSURED NOT ENTITLED TO ATTORNEY’S FEES IN AN AFFIRMATIVE ACTION TO SETTLE THE INSURED’S RIGHTS UNDER THE POLICY.
Absent Landowners Not Liable for Injuries at Party Hosted on their Property.
Attorney-in-Fact Used His Power to Create a Gift (by Deed) to Himself and/or Third Parties—Deed Declared Null and Void
Insufficient Evidence of History of Alcohol and Drug Abuse in SORA Proceeding
NO FOUNDATION FOR RECANTATION EVIDENCE COULD BE LAID BECAUSE THE ALLEGED VICTIM REFUSED TO TESTIFY; TRIAL COURT SHOULD NOT HAVE ALLOWED VICTIM’S TESTIMONY FROM THE FIRST TRIAL TO BE ADMITTED WITHOUT EXPLORING WHETHER THE TESTIMONY SHOULD BE STRUCK BECAUSE IT WAS CENTRAL TO THE PROSECUTION’S CASE; TRIAL COURT ACTED VINDICTIVELY BY IMPOSING A HARSHER SENTENCE AFTER RETRIAL.

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

CODEFENDANT WAS SEEN ENTERING A CAR WITH A WEAPON WHICH WAS LATER FOUND ON THE... ALTHOUGH THERE WAS NO ABUSE OF DISCRETION BY COUNTY COURT, APPELLATE COURT VACATED...