People v Lashley

2019 NY Slip Op 08934 [178 AD3d 506]

December 12, 2019

Appellate Division, First Department

As corrected through Wednesday, January 29, 2020

[*1]

The People of the State of New York,Respondent, v Sharon Lashley, 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), forrespondent.

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 ofcriminal possession of a forged instrument in the second degree, and sentencing her, as a secondfelony offender, to a term of 31/2 to 7 years, unanimously modified, on the law, tothe extent of vacating the second felony offender adjudication and sentence, and remanding forresentencing, including the filing by the People of a proper predicate felony statement, andotherwise affirmed.

Defendant's challenge to the facial sufficiency of the predicate felony offender statement doesnot require preservation (see People vSoto, 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 felonystatement submitted by the People. Therefore, the People's failure to include this information inthe 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 remainingcontention regarding her sentence. Concur—Renwick, J.P., Gische, Mazzarelli, Moulton,JJ.