persistent felony offender hearing in New York

2018Penal Law § 70.10(1)(a) defines a persistent felony offender as "a person, other than a persistent violent felony offender . . . , who stands convicted of a felony after having previously been convicted of two or more felonies." The procedure for determining whether a defendant may be subjected to increased punishment as a persistent felony offender mandates a "two-pronged analysis" ( People v Smith , 232 AD2d 586, 586 [internal quotation marks omitted]; see CPL 400.20[1]; People v Gaines , 136 AD2d 731, 733 ; People v Oliver , 96 AD2d 1104 , affd 63 NY2d 973 ).

2000The court’s conclusory recitation at sentencing that it had reviewed the defendant’s background and record was insufficient to fulfill the statute’s mandate (see, People v Smith, supra, at 587 ; People v Gaines, supra; People v Montes, supra).

2016Neither of the felonies at issue in Young v Conway was used as a predicate felony to determine defendant’s eligibility to be sentenced as a persistent felony offender (see Penal Law § 70.10 [1]; cf. People v Dozier, 78 NY2d 242, 248 [1991]), and defendant’s lengthy and serious criminal history, including a murder conviction from North Carolina, was sufficient to support Supreme Court’s determination that defendant’s “history and character,” along with the “nature and circumstances of his criminal conduct,” warranted imposition of a persistent felony offender sentence, even without consideratio

2016Neither of the felonies at issue in Young v Conway was used as a predicate felony to determine defendant’s eligibility to be sentenced as a persistent felony offender (see Penal Law § 70.10 [1]; cf. People v Dozier, 78 NY2d 242, 248 [1991]), and defendant’s lengthy and serious criminal history, including a murder conviction from North Carolina, was sufficient to support Supreme Court’s determination that defendant’s “history and character,” along with the “nature and circumstances of his criminal conduct,” warranted imposition of a persistent felony offender sentence, even without consideratio

2014The contention of defendant concerning appeal No. 1 in his main and pro se supplemental briefs that he was improperly adjudicated a persistent felony offender was considered and rejected by this Court on defendant’s appeal from an order denying his CPL article 440 motion to vacate the sentence imposed upon the underlying judgment of conviction (People v Jones, 109 AD3d 1108, 1108 [2013]).

2014The contention of defendant concerning appeal No. 1 in his main and pro se supplemental briefs that he was improperly adjudicated a persistent felony offender was considered and rejected by this Court on defendant’s appeal from an order denying his CPL article 440 motion to vacate the sentence imposed upon the underlying judgment of conviction (People v Jones, 109 AD3d 1108, 1108 [2013]).

2014As defendant correctly concedes, he likewise failed to preserve for our review his contention that he was improperly shackled during the persistent felony offender hearing (see People v Robinson, 49 AD3d 1269, 1270 [2008], lv denied 10 NY3d 869 [2008]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

2014As defendant correctly concedes, he likewise failed to preserve for our review his contention that he was improperly shackled during the persistent felony offender hearing (see People v Robinson, 49 AD3d 1269, 1270 [2008], lv denied 10 NY3d 869 [2008]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

2013The Supreme Court erred in failing to provide proper notice of the persistent felony offender hearing pursuant to CPL 400.20 (l)-(4), and to set forth specific reasons supporting its determination to sentence the defendant as a persistent felony offender (see Penal Law § 70.10 [2]; People v Brothers, 95 AD3d 1227, 1229 [2012]; People v Rivera, 60 AD3d 788 [2009]; People v Bazemore, 52 AD3d 727, 727-728 [2008]; People v Murdaugh, 38 AD3d 918, 919-920 [2007]).

2013The Supreme Court erred in failing to provide proper notice of the persistent felony offender hearing pursuant to CPL 400.20 (l)-(4), and to set forth specific reasons supporting its determination to sentence the defendant as a persistent felony offender (see Penal Law § 70.10 [2]; People v Brothers, 95 AD3d 1227, 1229 [2012]; People v Rivera, 60 AD3d 788 [2009]; People v Bazemore, 52 AD3d 727, 727-728 [2008]; People v Murdaugh, 38 AD3d 918, 919-920 [2007]).

2013The Supreme Court erred in failing to provide proper notice of the persistent felony offender hearing pursuant to CPL 400.20 (l)-(4), and to set forth specific reasons supporting its determination to sentence the defendant as a persistent felony offender (see Penal Law § 70.10 [2]; People v Brothers, 95 AD3d 1227, 1229 [2012]; People v Rivera, 60 AD3d 788 [2009]; People v Bazemore, 52 AD3d 727, 727-728 [2008]; People v Murdaugh, 38 AD3d 918, 919-920 [2007]).

2013The Supreme Court erred in failing to provide proper notice of the persistent felony offender hearing pursuant to CPL 400.20 (l)-(4), and to set forth specific reasons supporting its determination to sentence the defendant as a persistent felony offender (see Penal Law § 70.10 [2]; People v Brothers, 95 AD3d 1227, 1229 [2012]; People v Rivera, 60 AD3d 788 [2009]; People v Bazemore, 52 AD3d 727, 727-728 [2008]; People v Murdaugh, 38 AD3d 918, 919-920 [2007]).

2013The Supreme Court erred in failing to provide proper notice of the persistent felony offender hearing pursuant to CPL 400.20 (l)-(4), and to set forth specific reasons supporting its determination to sentence the defendant as a persistent felony offender (see Penal Law § 70.10 [2]; People v Brothers, 95 AD3d 1227, 1229 [2012]; People v Rivera, 60 AD3d 788 [2009]; People v Bazemore, 52 AD3d 727, 727-728 [2008]; People v Murdaugh, 38 AD3d 918, 919-920 [2007]).

2013The Supreme Court erred in failing to provide proper notice of the persistent felony offender hearing pursuant to CPL 400.20 (l)-(4), and to set forth specific reasons supporting its determination to sentence the defendant as a persistent felony offender (see Penal Law § 70.10 [2]; People v Brothers, 95 AD3d 1227, 1229 [2012]; People v Rivera, 60 AD3d 788 [2009]; People v Bazemore, 52 AD3d 727, 727-728 [2008]; People v Murdaugh, 38 AD3d 918, 919-920 [2007]).

2026Conversely, we have required preservation when the gravamen of the defendant's argument is that the imposed sentence is impermissible in the circumstances of that particular case. "[C]hallenges to the court's procedures, evidentiary disputes[,] and claims that rely on documents or facts not otherwise developed in the record must be preserved" ( Nieves , 2 NY3d at 316, citing People v Horne , 97 NY2d 404, 414 n 3 [2002] [challenge to the amount of restitution]; see also People v Smith , 73 NY2d 961, 962-963 [1989] [challenge concerning whether a [*6] predicate offense was equivalent to a New Yo

2026Conversely, we have required preservation when the gravamen of the defendant's argument is that the imposed sentence is impermissible in the circumstances of that particular case. "[C]hallenges to the court's procedures, evidentiary disputes[,] and claims that rely on documents or facts not otherwise developed in the record must be preserved" ( Nieves , 2 NY3d at 316 , citing People v Horne , 97 NY2d 404 , 414 n 3 [2002] [challenge to the amount of restitution]; see also People v Smith , 73 NY2d 961, 962-963 [1989] [challenge concerning whether a [*6] predicate offense was equivalent to a New

2020However, we agree with the defendant's contention that the totality of the evidence adduced at the persistent felony offender hearing, although warranting the defendant's adjudication as a second felony offender, did not warrant his adjudication as a persistent felony offender ( see [*2]Penal Law § 70.10[2]; CPL 400.20[1]; People v Fews , 148 AD3d 1180, 1182 ; People v Velazquez , 58 AD3d 646 ; People v Greene , 57 AD3d 1004, 1006 ; People v Truesdale , 44 AD3d 971, 972 ).

2017We also agree with the defendant that the totality of the evidence adduced at the persistent felony offender hearing, although warranting the defendant’s adjudication as a second felony offender, did not warrant his adjudication as a persistent felony offender (see Penal Law § 70.10; CPL 400.20; People v Velazquez, 58 AD3d 646 [2009]; People v Greene, 57 AD3d 1004, 1006 [2008]; People v Truesdale, 44AD3d 971, 972 [2007]; People v Friday, 114 AD2d 970 [1985]).

2026Conversely, we have required preservation when the gravamen of the defendant's argument is that the imposed sentence is impermissible in the circumstances of that particular case. "[C]hallenges to the court's procedures, evidentiary disputes[,] and claims that rely on documents or facts not otherwise developed in the record must be preserved" ( Nieves , 2 NY3d at 316, citing People v Horne , 97 NY2d 404, 414 n 3 [2002] [challenge to the amount of restitution]; see also People v Smith , 73 NY2d 961, 962-963 [1989] [challenge concerning whether a [*6] predicate offense was equivalent to a New Yo

2026Conversely, we have required preservation when the gravamen of the defendant's argument is that the imposed sentence is impermissible in the circumstances of that particular case. "[C]hallenges to the court's procedures, evidentiary disputes[,] and claims that rely on documents or facts not otherwise developed in the record must be preserved" ( Nieves , 2 NY3d at 316 , citing People v Horne , 97 NY2d 404 , 414 n 3 [2002] [challenge to the amount of restitution]; see also People v Smith , 73 NY2d 961, 962-963 [1989] [challenge concerning whether a [*6] predicate offense was equivalent to a New

2022We have considered and rejected defendant's remaining allegations of ineffective assistance of counsel ( see generally People v Baldi , 54 NY2d 137, 146-152 [1981]).

1985A review of the plea, the evidence presented at the persistent felony offender hearing, the conduct of counsel and the law compels our conclusion that defendant was adequately provided with meaningful representation (People v Baldi, 54 NY2d 137, 147 ).

2026Conversely, we have required preservation when the gravamen of the defendant's argument is that the imposed sentence is impermissible in the circumstances of that particular case. "[C]hallenges to the court's procedures, evidentiary disputes[,] and claims that rely on documents or facts not otherwise developed in the record must be preserved" ( Nieves , 2 NY3d at 316, citing People v Horne , 97 NY2d 404, 414 n 3 [2002] [challenge to the amount of restitution]; see also People v Smith , 73 NY2d 961, 962-963 [1989] [challenge concerning whether a [*6] predicate offense was equivalent to a New Yo

2026Conversely, we have required preservation when the gravamen of the defendant's argument is that the imposed sentence is impermissible in the circumstances of that particular case. "[C]hallenges to the court's procedures, evidentiary disputes[,] and claims that rely on documents or facts not otherwise developed in the record must be preserved" ( Nieves , 2 NY3d at 316 , citing People v Horne , 97 NY2d 404 , 414 n 3 [2002] [challenge to the amount of restitution]; see also People v Smith , 73 NY2d 961, 962-963 [1989] [challenge concerning whether a [*6] predicate offense was equivalent to a New

2026Conversely, we have required preservation when the gravamen of the defendant's argument is that the imposed sentence is impermissible in the circumstances of that particular case. "[C]hallenges to the court's procedures, evidentiary disputes[,] and claims that rely on documents or facts not otherwise developed in the record must be preserved" ( Nieves , 2 NY3d at 316, citing People v Horne , 97 NY2d 404, 414 n 3 [2002] [challenge to the amount of restitution]; see also People v Smith , 73 NY2d 961, 962-963 [1989] [challenge concerning whether a [*6] predicate offense was equivalent to a New Yo

2026Conversely, we have required preservation when the gravamen of the defendant's argument is that the imposed sentence is impermissible in the circumstances of that particular case. "[C]hallenges to the court's procedures, evidentiary disputes[,] and claims that rely on documents or facts not otherwise developed in the record must be preserved" ( Nieves , 2 NY3d at 316 , citing People v Horne , 97 NY2d 404 , 414 n 3 [2002] [challenge to the amount of restitution]; see also People v Smith , 73 NY2d 961, 962-963 [1989] [challenge concerning whether a [*6] predicate offense was equivalent to a New

2026We have also held that preservation is required for a claim that a particular sentence constitutes cruel and unusual punishment ( see Pena , 28 NY3d at 730; People v Ingram , 67 NY2d 897, 899 [1986]).

2026We have also held that preservation is required for a claim that a particular sentence constitutes cruel and unusual punishment ( see Pena , 28 NY3d at 730 ; People v Ingram , 67 NY2d 897, 899 [1986]).

2026We have also held that preservation is required for a claim that a particular sentence constitutes cruel and unusual punishment ( see Pena , 28 NY3d at 730; People v Ingram , 67 NY2d 897, 899 [1986]).

2026We have also held that preservation is required for a claim that a particular sentence constitutes cruel and unusual punishment ( see Pena , 28 NY3d at 730 ; People v Ingram , 67 NY2d 897, 899 [1986]).