green
Positive treatment
Issue: simply corrected errorNY ↗
Issue: rare exceptionNY ↗
Issue: possible justification defenseNY ↗
Issue: absence of mitigating factorsNY ↗
44.4 score
G Cite
cited 7× by 7 distinct cases, 2012–2023 ·
…although this issue was not raised before the sentencing court or on appeal, we cannot allow an illegal sentence to stand
at p. 1180
✓
Topic ↗
cited 5× by 5 distinct cases, 2008–2013 ·
…although that issue was not raised before the sentencing court or on appeal, we cannot allow an illegal sentence to stand
at p. 1180
✓
cited 3× by 3 distinct cases ·
…although this issue was not raised before the sentencing court or by defendant on appeal, we cannot allow an illegal sentence to stand
at p. 1180
≈ altered
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007
2016
2026
Top citers, strongest first. 45 distinct citers.
How cited ↗
discussed
Cited as authority (rule)
People v. Clark
Defendant failed to preserve for our review his contention that his Alford plea was not knowingly and voluntarily entered inasmuch as he did not move to withdraw his guilty plea or to vacate the judgment of conviction ( see People v Rivers , 145 AD3d 1591 , 1592 [4th Dept 2016], lv denied 29 NY3d 952 [2017]; People v Davis , 37 AD3d 1179, 1179 [4th Dept 2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Clark
Defendant failed to preserve for our review his contention that his Alford plea was not knowingly and voluntarily entered inasmuch as he did not move to withdraw his guilty plea or to vacate the judgment of conviction ( see People v Rivers , 145 AD3d 1591 , 1592 [4th Dept 2016], lv denied 29 NY3d 952 [2017]; People v Davis , 37 AD3d 1179, 1179 [4th Dept 2007], lv denied 8 NY3d 983 [2007]).
cited
Cited as authority (rule)
People v. Koeberle
Because we cannot allow an illegal sentence to stand ( see People v Davis , 37 AD3d 1179, 1180 [4th Dept 2007], lv denied 8 NY3d 983 [2007]), we modify the judgment accordingly.
discussed
Cited as authority (rule)
People v. Mabry
Defendant should have been sentenced as a second felony offender to an indeterminate sentence of imprisonment with a maximum term between 4 to 7 years and a minimum term of one-half the maximum, with no postrelease supervision (Penal Law §§ 70.06 [2], [3] [d]; [4] [b]; 70.45 [1]). " 'Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand' " ( People v Davis , 37 AD3d 1179, 1180 [4th Dept 2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Horton
Thus, in the absence of a statement of the facts and circumstances warranting concurrent sentences set forth on the record, the court was required to direct that the felony sentences run consecutively ( see § 70.25 [2-b]; People v Davis , 37 AD3d 1179, 1180 [4th Dept 2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Horton
Thus, in the absence of a statement of the facts and circumstances warranting concurrent sentences set forth on the record, the court was required to direct that the felony sentences run consecutively ( see § 70.25 [2-b]; People v Davis , 37 AD3d 1179, 1180 [4th Dept 2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Francois
Defendant's challenges to the voluntariness of his guilty plea are without merit ( see People v Ashley , 71 AD3d 1286, 1287 [3d Dept 2010], affd 16 NY3d 725 [2011]; People v Miller , 126 AD3d 1233, 1234-1235 [3d Dept 2015], lv denied 25 NY3d 1168 [2015]; People v Davis , 37 AD3d 1179, 1180 [4th Dept 2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Holt
Defendant failed to preserve his remaining contention that his guilty plea was not knowing, intelligent, and voluntary ( see People v Hill , 128 AD3d 1479 , 1480 [4th Dept 2015], lv denied 26 NY3d 930 [2015]; People v Davis , 37 AD3d 1179, 1179 [4th Dept 2007], lv denied 8 NY3d 983 [2007]), and we decline to exercise our power to address that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [3] [c]).
discussed
Cited as authority (rule)
People v. Campagna
As relevant here, the mandatory term of probation with an ignition interlock device pursuant to section 60.21 applies only to a defendant convicted of a violation of Vehicle and Traffic Law § 1192 (2), (2-a) or (3) ( see Giacona , 130 AD3d at 1566 ; Flagg , 107 AD3d at 1614). " Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand' " ( People v Davis , 37 AD3d 1179, 1180 [4th Dept 2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Adams
“Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Adams
“Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Jones
As the People correctly note, CPW 3d under section 265.02 (1) is not a violent felony (see Penal Law § 70.02 [former (1) (c)]), and, therefore the determinate term of incarceration imposed on that count of the indictment is illegal (see § 70.00 [2] [d]; [3] [b]). “ ‘Although this issue was not raised before the [sentencing] court or [by defendant] on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180 [2007], Iv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Jones
As the People correctly note, CPW 3d under section 265.02 (1) is not a violent felony (see Penal Law § 70.02 [former (1) (c)]), and, therefore the determinate term of incarceration imposed on that count of the indictment is illegal (see § 70.00 [2] [d]; [3] [b]). “ ‘Although this issue was not raised before the [sentencing] court or [by defendant] on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180 [2007], Iv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Hughes
We conclude that the sentence is illegal insofar as it imposes a 20-year period of postrelease supervision for attempted criminal sexual act in the first degree (see Penal Law § 70.45 [2-a] [e]). “ ‘Although [that] issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Hughes
We conclude that the sentence is illegal insofar as it imposes a 20-year period of postrelease supervision for attempted criminal sexual act in the first degree (see Penal Law § 70.45 [2-a] [e]). “ ‘Although [that] issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
cited
Cited as authority (rule)
People v. Allard
Because we cannot allow an illegal sentence to stand (see People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]), we modify the judgment accordingly.
cited
Cited as authority (rule)
People v. Allard
Because we cannot allow an illegal sentence to stand (see People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]), we modify the judgment accordingly.
discussed
Cited as authority (rule)
People v. Dekenipp
“Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007] [internal quotation marks omitted]; see generally People v Moore [appeal No. 1], 78 AD3d 1658 , 1658 [2010], lv denied 17 NY3d 798 [2011]). “[Sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (People v Ramirez, 89 NY2d 444, 451 …
discussed
Cited as authority (rule)
People v. Dekenipp
“Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007] [internal quotation marks omitted]; see generally People v Moore [appeal No. 1], 78 AD3d 1658 , 1658 [2010], lv denied 17 NY3d 798 [2011]). “[Sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (People v Ramirez, 89 NY2d 444, 451 …
discussed
Cited as authority (rule)
People v. Carter
We therefore modify the judgment accordingly. “ ‘Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Carter
We therefore modify the judgment accordingly. “ ‘Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Butler
That contention is unpreserved for our review inasmuch as defendant did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v Davis, 37 AD3d 1179, 1179 [2007], lv denied 8 NY3d 983 [2007]; People v Swank, 278 AD2d 861, 861 [2000], lv denied 96 NY2d 807 [2001]; see also People v Simpson, 19 AD3d 945 [2005]), and this case does not fall within the rare exception to the preservation requirement set forth in People v Lopez ( 71 NY2d 662, 666 [1988]) because nothing in the plea allocution calls into question the voluntariness of the plea or casts “sign…
discussed
Cited as authority (rule)
People v. Meden
We reject defendant’s challenge to the severity of the sentence, but we conclude that the sentence imposed is illegal and cannot stand despite the failure of either defendant or the People to raise the issue in County Court or on appeal (see People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Meden
We reject defendant’s challenge to the severity of the sentence, but we conclude that the sentence imposed is illegal and cannot stand despite the failure of either defendant or the People to raise the issue in County Court or on appeal (see People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Butler
That contention is unpreserved for our review inasmuch as defendant did not move to withdraw the plea or to vacate the judgment of conviction on that ground (see People v Davis, 37 AD3d 1179, 1179 [2007], lv denied 8 NY3d 983 [2007]; People v Swank, 278 AD2d 861, 861 [2000], lv denied 96 NY2d 807 [2001]; see also People v Simpson, 19 AD3d 945 [2005]), and this case does not fall within the rare exception to the preservation requirement set forth in People v Lopez ( 71 NY2d 662, 666 [1988]) because nothing in the plea allocution calls into question the voluntariness of the plea or casts “sign…
cited
Cited as authority (rule)
People v. Kennedy
Because we cannot allow an illegal sentence to stand (see People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]), we modify the judgment accordingly.
discussed
Cited as authority (rule)
People v. Warren
While this issue was not raised by either party before the sentencing court or on appeal and the sentence as imposed favors defendant, we nevertheless must vacate the illegal sentence (see People v Warner, 69 AD3d 1052, 1054 [2010]; People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Frazier
Finally, as the People correctly concede, County Court erred in failing to include a period of postrelease supervision when it imposed the sentence for assault in the second degree. “ ‘Although this issue was not raised [by defendant] before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
cited
Cited as authority (rule)
People v. Lee
We reject that contention, in view of the well settled principle that “ ‘we cannot allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180 [2007], Iv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Wilson
“By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that he raised [a] possible . . . intoxication defense[ ] during his plea colloquy and thus that [Supreme] Court erred in failing to conduct a sufficient inquiry to ensure that the plea was knowingly, voluntarily and intelligently entered” (People v Davis, 37 AD3d 1179, 1179 [2007], lv denied 8 NY3d 983 [2007]; see People v Lopez, 71 NY2d 662, 665 [1988]).
discussed
Cited as authority (rule)
People v. Gibson
Finally, we conclude that the sentence is illegal insofar as it includes a two-year period of postrelease supervision (see Penal Law § 70.45 [2]). “ ‘Although [that] issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand’ ” (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited as authority (rule)
People v. Christopher T.
A challenge to the legality of a sentence is not precluded by a defendant’s waiver of the right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Coleman, 23 AD3d 1033 [2005]), and we reach the issue despite defendant’s failure to raise it at sentencing or on appeal inasmuch as “we cannot allow an [illegal] sentence to stand” (People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007] [internal quotation marks omitted]).
discussed
Cited as authority (rule)
People v. Adams
We further conclude, however, that the sentence imposed is illegal and therefore cannot stand, despite defendant’s failure to raise the issue in the trial court or on appeal (see People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]; People v Price, 140 AD2d 927 [1988]).
discussed
Cited "see"
People v. Bembry
Furthermore, "[n]either County Court nor this Court possesses interest of justice jurisdiction to impose a sentence less than the mandatory statutory minimum" ( People v Clark , 176 AD2d 1206, 1206-1207 [4th Dept 1991], lv denied 79 NY2d 854 [1992]; see People v Dexter , 104 AD3d 1184 , 1185 [4th Dept 2013]). " 'Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand' " ( People v Davis , 37 AD3d 1179, 1180 [4th Dept 2007], lv denied 8 NY3d 983 [2007]; see People v Campagna , 172 AD3d 1904 , 1905 [4th Dept 2019]).
discussed
Cited "see"
People v. Smikle
To the contrary, as noted above, postrelease supervision is mandated by statute (see Penal Law § 70.45 [1]; see generally People v Davis, 37 AD3d 1179, 1180 [2007]), and we conclude that “ ‘in resentencing defendant the court simply corrected the error . . . made at the time of the original sentence and thus that the resentence was proper’ ” (People v Fomby, 103 AD3d 1100, 1100 [2013], lv denied 21 NY3d 1073 [2013]; see People v Sparber, 10 NY3d 457, 472 [2008]; see generally People v Howard, 96 AD3d 1691, 1692 [2012], lv denied 19 NY3d 1103 [2012]).
discussed
Cited "see"
SMIKLE, JASON, PEOPLE v
To the contrary, as noted above, postrelease supervision is mandated by statute (see Penal Law § 70.45 [1]; see generally People v Davis, 37 AD3d 1179, 1180 ), and we conclude that “ ‘in resentencing defendant the court simply corrected the error . . -2- 1289 KA 12-00436 . made at the time of the original sentence and thus that the resentence was proper’ ” (People v Fomby, 103 AD3d 1100, 1100 , lv denied 21 NY3d 1073 ; see People v Sparber, 10 NY3d 457, 472 ; see generally People v Howard, 96 AD3d 1691, 1692 , lv denied 19 NY3d 1103 ).
discussed
Cited "see"
People v. Smikle
To the contrary, as noted above, postrelease supervision is mandated by statute (see Penal Law § 70.45 [1]; see generally People v Davis, 37 AD3d 1179, 1180 [2007]), and we conclude that “ ‘in resentencing defendant the court simply corrected the error . . . made at the time of the original sentence and thus that the resentence was proper’ ” (People v Fomby, 103 AD3d 1100, 1100 [2013], lv denied 21 NY3d 1073 [2013]; see People v Sparber, 10 NY3d 457, 472 [2008]; see generally People v Howard, 96 AD3d 1691, 1692 [2012], lv denied 19 NY3d 1103 [2012]).
discussed
Cited "see"
People v. Singh
“Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” (People v Carter, 96 AD3d 1520, 1522 [2012] [internal quotation marks omitted]; see People v Davis, 37 AD3d 1179, 1180 [2007]).
discussed
Cited "see"
People v. Singh
“Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” (People v Carter, 96 AD3d 1520, 1522 [2012] [internal quotation marks omitted]; see People v Davis, 37 AD3d 1179, 1180 [2007]).
discussed
Cited "see"
DEXTER, CHAUNCEY K., PEOPLE v
We note, however, that the one-year period of conditional discharge imposed by County Court is illegal inasmuch as Penal Law § 65.05 (3) (a) provides that such period “shall be” three years for felony offenses, and “[n]either County Court nor this Court possesses interest of justice jurisdiction to impose a sentence less than the mandatory statutory minimum” (People v Clark, 176 AD2d 1206, 1206-1207 , lv denied 79 NY2d 854 ; see generally People v Vidaurrazaga, 100 AD3d 664, 665 ). “ ‘Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an…
discussed
Cited "see"
People v. Dexter
We note, however, that the one-year period of conditional discharge imposed by County Court is illegal inasmuch as Penal Law § 65.05 (3) (a) provides that such period “shall be” three years for felony offenses, and “[n]either County Court nor this Court possesses interest of justice jurisdiction to impose a sentence less than the mandatory statutory minimum” (People v Clark, 176 AD2d 1206, 1206-1207 [1991], lv denied 79 NY2d 854 [1992]; see generally People v Vidaurrazaga, 100 AD3d 664, 665 [2012]). “ ‘Although this issue was not raised before the [sentencing] court or on appeal, …
discussed
Cited "see"
People v. Dexter
We note, however, that the one-year period of conditional discharge imposed by County Court is illegal inasmuch as Penal Law § 65.05 (3) (a) provides that such period “shall be” three years for felony offenses, and “[n]either County Court nor this Court possesses interest of justice jurisdiction to impose a sentence less than the mandatory statutory minimum” (People v Clark, 176 AD2d 1206, 1206-1207 [1991], lv denied 79 NY2d 854 [1992]; see generally People v Vidaurrazaga, 100 AD3d 664, 665 [2012]). “ ‘Although this issue was not raised before the [sentencing] court or on appeal, …
discussed
Cited "see"
PHELPS, ALINA, PEOPLE v
We agree with defendant that County Court erred in directing that the determinate sentence of imprisonment of four years for the instant offense run concurrently with a determinate sentence of imprisonment of three years imposed on a prior felony conviction without making “a statement on the record of the facts and circumstances” warranting that determination (§ 70.25 [former (2-b)]; see People v Davis, 37 AD3d 1179, 1180 , lv denied 8 NY3d 983 ).
discussed
Cited "see"
People v. Phelps
We agree with defendant that County Court erred in directing that the determinate sentence of imprisonment of four years for the instant offense run concurrently with a determinate sentence of imprisonment of three years imposed on a prior felony conviction without making “a statement on the record of the facts and circumstances” warranting that determination (§ 70.25 [former (2-b)]; see People v Davis, 37 AD3d 1179, 1180 [2007], lv denied 8 NY3d 983 [2007]).
discussed
Cited "see, e.g."
People v. Johnson
Defendant failed to preserve for our review his contention that the plea was not knowingly, voluntarily and intelligently entered inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v Aguayo, 37 AD3d 1081 [2007], lv denied 8 NY3d 981 [2007]; see also People v Davis, 37 AD3d 1179 [2007], lv denied 8 NY3d 983 [2007]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Yehudah T. Davis, Sr.
v.
Yehudah T. Davis, Sr.
Appellate Division of the Supreme Court of the State of New York.
Feb 2, 2007.
Cited by 57 opinions | Published
Appeal from a judgment of the Orleans County Court (James P. Punch, J.), rendered October 17, 2005. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the sentence and as modified the judgment is affirmed, and the matter is remitted to Orleans County Court for resentencing.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the second degree (Penal Law § 120.05 [2]). By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that he raised possible justification and intoxication defenses during his plea colloquy and thus that County Court erred in failing to conduct a sufficient inquiry to ensure that the plea was knowingly, voluntarily and intelligently entered (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Simpson, 19 AD3d 945 [2005]; People v Simmons, 294 AD2d 928 [2002], lv denied 98 NY2d 702 [2002]). This is not one of those rare cases “where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea” to obviate the pres[*1180] ervation requirement (Lopez, 71 NY2d at 666; see also People v Rodriguez, 17 AD3d 1127, 1129 [2005], lv denied 5 NY3d 768 [2005]). In any event, the court’s inquiry was sufficient to ensure that there was no possibility of a justification or intoxication defense and thus that defendant’s plea was knowingly, voluntarily and intelligently entered (see People v Spickerman, 307 AD2d 774 [2003], lv denied 100 NY2d 624 [2003]).
Finally, we conclude that the court erred in directing that the determinate sentence of imprisonment of five years run concurrently with a sentence of imprisonment of 1 to 3 years on a prior felony conviction without providing a statement on the record of the facts and circumstances warranting that determination. Defendant committed the instant offense while released on bail or recognizance pending the disposition of the prior felony offense, and thus, in the absence of certain mitigating factors, the court was required to order that the sentence run consecutively to the sentence imposed upon the prior felony conviction (see Penal Law § 70.25 [2-b]; People v Garcia, 84 NY2d 336 [1994]). “Although this issue was not raised before the [sentencing] court or on appeal, we cannot allow an [illegal] sentence to stand” (People v Price, 140 AD2d 927, 928 [1988]; see People v Swan, 158 AD2d 158, 163 [1990], lv denied 76 NY2d 991 [1990]). We therefore modify the judgment by vacating the sentence, and we remit the matter to County Court for resentencing. Present—Hurlbutt, J.P, Smith, Centra and Pine, JJ.