Summary
In Scarbrough, the Court held that a defendant illegally sentenced as a first felony offender may have that sentence vacated prior to one year pursuant to CPL 440.40 (1), even where the defendant's status as a predicate felon was known or should have been known at the time.
Summary of this case from People v. RyanOpinion
Argued September 12, 1985
Decided October 10, 1985
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Charles J. Hannigan, J.
Peter L. Broderick, District Attorney ( Raymond Thomas Burgasser of counsel), for appellant.
Richard H. Speranza, Public Defender ( Leonard G. Tilney, Jr., of counsel), for respondent.
Order reversed, the People's motion pursuant to CPL 440.40 granted, sentence set aside and case remitted to Supreme Court, Niagara County, for the filing of a predicate felony statement prior to resentencing, for the reasons stated in the dissenting memorandum of Justice James H. Boomer at the Appellate Division ( 105 A.D.2d 1107-1109).
Concur: Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE, ALEXANDER and TITONE.