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People v. Kilgore

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 29, 1993
199 A.D.2d 1008 (N.Y. App. Div. 1993)

Opinion

December 29, 1993

Appeal from the Onondaga County Court, Cunningham, J.

Present — Denman, P.J., Callahan, Pine, Doerr and Boehm, JJ.


Judgment unanimously modified on the law and as modified affirmed and matter remitted to Onondaga County Court for further proceedings in accordance with the following Memorandum: We reject the People's contention that defendant waived his right to appeal his sentencing as a predicate felon without a hearing when he accepted the plea agreement. The right to challenge the legality of a sentence is not subject to waiver (see, People v Callahan, 80 N.Y.2d 273, 281; People v Francabandera, 33 N.Y.2d 429).

County Court erred in summarily refusing to consider the constitutional challenge of defendant to his prior felony conviction. When the constitutionality of a predicate felony is attacked, the sentencing court must conduct a hearing prior to imposing a second felony offender sentence (CPL 400.21; People v Longboat, 154 A.D.2d 916). We, therefore, modify the judgments by vacating defendant's sentences and remit the matters to the sentencing court for a hearing to determine the merits of the challenge to defendant's predicate felony conviction (see, CPL 400.21 [b]).


Summaries of

People v. Kilgore

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 29, 1993
199 A.D.2d 1008 (N.Y. App. Div. 1993)
Case details for

People v. Kilgore

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STEVEN M. KILGORE…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 29, 1993

Citations

199 A.D.2d 1008 (N.Y. App. Div. 1993)
608 N.Y.S.2d 12

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