sequentiality requirement in New York

2019By following the legislative directive that the governing date under the sequentiality requirement is when “[s]entence upon such prior conviction [was] imposed” (Penal Law § 70.06 [1] [b] [ii]), we give the prior illegal sentence only as much “operative legal effect” - 11 - - 12 - No. 5 (dissenting op at 2) as the Penal Law allows, and effectuate the purpose of the multiple offender statutes—namely, to hold defendants accountable for failing to comport with the norms of civil society even after being subjected to the “chastening effect of sentence on [a] prior conviction” (Morse, 62 NY2d at 21

2007As the People concede, defendant was improperly adjudicated a persistent violent felony offender because the adjudication was based on predicate convictions that did not meet the sequentiality requirement of Penal Law § 70.08 (see People v Morse, 62 NY2d 205 [1984]).

2008However, under the circumstances, the People are entitled to an opportunity to establish, on the basis of a different conviction, that defendant is nonetheless a second violent felony offender (see People v Sailor, 65 NY2d 224 [1985], cert denied 474 US 982 [1985]).

2007However, the People are not precluded from attempting to establish, on the basis of a different conviction or convictions, that defendant is nonetheless a persistent violent felony offender (see People v Sailor, 65 NY2d 224 [1985], cert denied 474 US 982 [1985]).

2013The majority interprets our law to permit the government to rely on a sentence that is illegal under People v Sparber ( 10 NY3d 457 [2008]) for purposes of the sequentiality requirement in New York’s sentencing enhancement statutes.

2012We decline to follow the decision of the Appellate Division, First Department, in People v Butler ( 88 AD3d 470, 473 [2011]), in which that Court held that “where, in the normal course, the government seeks resentencing of a prior conviction and the sentence is vacated for failure to pronounce a term of PRS the resentencing date should be considered in determining whether the prior conviction meets the sequentiality requirement of the predicate felony offender statutes.” The holding in Butler was based principally upon an opinion authored by Chief Judge Lippman in People v Acevedo ( 17 NY3d 29

2019For purposes of appeal, the judgment consists of the conviction and the original sentence only, and when a resentence occurs more than [30] days after the original sentence, a defendant who has not previously filed a notice of appeal from the judgment may not appeal from the judgment, but only from the resentence.” Inasmuch as the legislature expressly distinguished a “sentence” from a “resentence” in the Criminal Procedural Law, a related statute, there is no reason to conclude that those terms are always interchangeable in the Penal Law (see People v Duggins, 3 NY3d 522 , 528 4 This same def

2019By following the legislative directive that the governing date under the sequentiality requirement is when “[s]entence upon such prior conviction [was] imposed” (Penal Law § 70.06 [1] [b] [ii]), we give the prior illegal sentence only as much “operative legal effect” - 11 - - 12 - No. 5 (dissenting op at 2) as the Penal Law allows, and effectuate the purpose of the multiple offender statutes—namely, to hold defendants accountable for failing to comport with the norms of civil society even after being subjected to the “chastening effect of sentence on [a] prior conviction” (Morse, 62 NY2d at 21

2012We decline to follow the decision of the Appellate Division, First Department, in People v Butler ( 88 AD3d 470, 473 [2011]), in which that Court held that “where, in the normal course, the government seeks resentencing of a prior conviction and the sentence is vacated for failure to pronounce a term of PRS the resentencing date should be considered in determining whether the prior conviction meets the sequentiality requirement of the predicate felony offender statutes.” The holding in Butler was based principally upon an opinion authored by Chief Judge Lippman in People v Acevedo ( 17 NY3d 29

2009In contrast to the sequentiality claim that the Court of Appeals held did not need to be preserved for review by timely objection (People v Samms, 95 NY2d 52 [2000]), the validity of these challenges cannot “be determined from the face of the appellate record” so that “[n]o resort to outside facts, documentation or foreign statutes is necessary” (id. at 57).

1986Therefore, these two convictions must be considered one predicate violent felony offense pursuant to People v Morse (supra), and the matter must be remitted to the Supreme Court, Kings County, for the resentencing of defendant as a second violent felony offender pursuant to Penal Law § 70.04 (see, People v Jackson, 108 AD2d 757 ; People v Taylor, 103 AD2d 853 ).

1986Therefore, these two convictions must be considered one predicate violent felony offense pursuant to People v Morse (supra), and the matter must be remitted to the Supreme Court, Kings County, for the resentencing of defendant as a second violent felony offender pursuant to Penal Law § 70.04 (see, People v Jackson, 108 AD2d 757 ; People v Taylor, 103 AD2d 853 ).