People v Lashley

People v Lashley 2019 NY Slip Op 08934 Decided on December 12, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 12, 2019
Renwick, J.P., Gische, Mazzarelli, Moulton, JJ.
10551 2998/16

[*1] The People of the State of New York, Respondent,

v

Sharon Lashley, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Michael D. Tarbutton of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at plea, Mark Dwyer, J. at sentencing), rendered April 10, 2018, as amended June 12, 2018, convicting defendant of criminal possession of a forged instrument in the second degree, and sentencing her, as a second felony offender, to a term of 3½ to 7 years, unanimously modified, on the law, to the extent of vacating the second felony offender adjudication and sentence, and remanding for resentencing, including the filing by the People of a proper predicate felony statement, and otherwise affirmed.

Defendant's challenge to the facial sufficiency of the predicate felony offender statement does not require preservation (see People v Soto, 138 AD3d 533 [1st Dept 2016], lv denied 28 NY3d 937 [2016]).

Nothing in the record demonstrates a sufficient tolling period to support the predicate felony statement submitted by the People. Therefore, the People's failure to include this information in the predicate felony statement cannot be deemed harmless (see id. at 534).

Because defendant is entitled to a new sentencing proceeding, we do not reach her remaining contention regarding her sentence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 12, 2019

DEPUTY CLERK