THE CONVICTION UPON WHICH DEFENDANT’S SECOND-FELONY-OFFENDER STATUS WAS BASED WAS MORE THAN 10 YEARS BEFORE THE CURRENT OFFENSE AND THE PEOPLE DID NOT DEMONSTRATE THAT ANY PORTION OF THE 10-YEAR PERIOD WAS TOLLED BY INCARCERATION; SENTENCE VACATED AND MATTER REMITTED FOR A HEARING AND RESENTENCING (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence as a second felony offender and remitting the matter for a hearing. determined the People did not submit evidence demonstrating when defendant was incarcerated such that the 10-year look-back period for the prior felony conviction could be calculated. The court noted that the issue need not be preserved for appeal:

… [D]efendant contends that he was not properly sentenced as a second felony offender. … [D]efendant was not required to preserve such a claim where, as here, the purported illegality is plain “from the face of the appellate record” … . … [W]e agree with defendant that the record reflects that his April 11, 2011 sentence on his predicate felony conviction was imposed more than 10 years before the commission of the instant offense, which occurred on July 6, 2021 … , and the People failed to meet their burden of showing that the 10-year look-back period was tolled by any periods of incarceration … . At sentencing, defendant admitted to the prior offense, but the People’s predicate felony statement did not set forth defendant’s dates of incarceration … . Since the record fails to disclose the legality of sentencing defendant as a second felony offender, the matter must be remitted for a hearing on this issue and resentencing … . People v McCall, 2023 NY Slip Op 02719, Third Dept 5-18-23

Practice Point: Here the People’s failure to submit proof of defendant’s prior incarceration made it impossible to determine whether the 10-year look-back period for a prior felony was tolled. Defendant’s sentence as a second felony offender was vacated and the matter was remitted for a hearing and resentencing.