You are here: / / THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED AS A SECOND VIOLENT FELONY...
,

THE CONTENTION DEFENDANT WAS ILLEGALLY SENTENCED AS A SECOND VIOLENT FELONY OFFENDER NEED NOT BE PRESERVED FOR APPEAL; DEFENDANT COMMITTED THE INSTANT OFFENSE BEFORE HE WAS SENTENCED ON THE PRIOR VIOLENT FELONY CONVICTION; SECOND VIOLENT FELONY OFFENDER ADJUDICATION VACATED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, noted that the contention defendant was illegally sentenced as a second violent felony offender need not be preserved for appeal:

As the People properly concede, the defendant’s contention that he was illegally sentenced as a second violent felony offender is not subject to the preservation rule … . Here, the defendant was illegally sentenced as a second violent felony offender since he committed the instant offense before he was sentenced on the prior violent felony conviction … . Thus, the prior violent felony conviction cannot serve as a predicate violent felony offense for sentencing purposes (see Penal Law § 70.04[1][b][ii]). People v Lynch, 2022 NY Slip Op 06141, Second Dept 11-2-22

Practice Point: Here the defendant committed the instant offense before he was sentenced on the prior violent felony. Therefore he should not have been adjudicated a second violent felony offender. The issue need not be preserved for appeal.

 

You might also like
EVIDENCE OF COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS OF RPAPL 1304 FIRST SUBMITTED IN REPLY SHOULD NOT HAVE BEEN CONSIDERED; THE EVIDENCE THE BANK HAD STANDING TO BRING THE FORECLOSURE ACTION WAS INSUFFICIENT (SECOND DEPT). ​
THE PROPERTY OWNERS DID NOT HAVE NOTICE OF THE ALLEGED DEFECT IN THE STOVE IN PLAINTIFF’S APARTMENT AND DID NOT HAVE A DUTY TO INSPECT THE STOVE AFTER THEY INSTALLED IT; THE PROPERTY OWNERS WERE ENTITLED TO SUMMARY JUDGMENT DISMISSING THE WRONGFUL DEATH ACTION STEMMING FROM A STOVE TOP FIRE (SECOND DEPT).
BECAUSE THE FOIL REQUESTS REQUIRED THE RESPONDENT TO CREATE NEW DOCUMENTS, THE REQUESTS SHOULD HAVE BEEN DENIED (SECOND DEPT).
PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION UNDER THE NYC HUMAN RIGHTS LAW, CAUSE OF ACTION ALLEGING A VIOLATION OF FREE SPEECH RIGHTS UNDER THE STATE CONSTITUTION REQUIRED A NOTICE OF CLAIM, AMENDMENT OF THE COMPLAINT TO ALLEGE A FIRST AMENDMENT RETALIATION CAUSE OF ACTION UNDER 42 USC 1983, WHICH DOES NOT REQUIRE A NOTICE OF CLAIM, SHOULD HAVE BEEN ALLOWED (SECOND DEPT).
PLAINTIFFS DID NOT ALLEGE THAT DEFENDANT CREATED THE DANGEROUS CONDITION AND DEFENDANT DEMONSTRATED IT DID NOT HAVE NOTICE OF THE CONDITION, THEREFORE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ICE AND SNOW SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).
DEFENDANT’S SUBMISSION OF RE-OFFENSE RISK ASSESSMENTS OTHER THAN NEW YORK’S RISK ASSESSMENT INSTRUMENT (RAI) DID NOT CONSTITUTE A MITIGATING FACTOR WARRANTING DOWNWARD DEPARTURE (SECOND DEPT).
DEPRESSED DRAIN NEAR CONDOMINIUM ENTRANCE WAS A NON-ACTIONABLE TRIVIAL DEFECT.
JUSTIFICATION DEFENSE JURY INSTRUCTION WAS NOT SUFFICIENT; NEW TRIAL MUST BE BEFORE A DIFFERENT JUDGE BECAUSE OF THE JUDGE’S EXCESSIVE INVOLVEMENT (SECOND 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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A MOTION TO VACATE AN ORDER SHOULD BE TRANSFERRED TO THE JUDGE WHO MADE THE... AN APPELLATE COURT MAY CONSIDER A SUPPRESSION RULING GROUNDED ON A THEORY NOT...