Conviction for Which an Illegal Sentence Was Imposed Can Not Serve as the Basis for a Second-Felony-Offender Adjudication

The Second Department determined that a prior conviction could not serve as the basis of defendant’s second-felony-offender adjudication.  The 1993 conviction was subject to an illegal sentence which was not remedied until after the commission of the instant offenses:

The defendant’s adjudication as a second felony offender was improper. The predicate for this adjudication was a 1993 conviction for which, the parties agree, an illegal sentence was imposed. A lawful sentence on that conviction was not imposed until after the instant crimes were committed. The relevant statute provides, however, that for purposes of determining whether a prior conviction is a predicate felony conviction, the sentence upon such prior conviction “must have been imposed before commission of the present felony” (Penal Law § 70.06[1][b][ii]). Thus, the 1993 matter may not serve as a predicate felony conviction in the instant case (see Penal Law § 70.06[1][b][ii]…). We reach this determination notwithstanding the fact that the defendant did not move to set aside his sentence in the 1993 matter until after the sentence in the instant case was imposed, as “multiple offender status is defined by the plain statutory language, which courts are not free to disregard” at will … . People v Esquiled, 2014 NY Slip Op 06839, 2nd Dept 10-8-14