People v. Carlos Santiago, Jr.


AD4 order dated June 8, 2012, modifying judgment of conviction by vacating a single count of sex abuse, and otherwise affirming the judgment of conviction. Decision below: 96 A.D.3d 1495, 946 N.Y.S.2d 383. Pigott, J., granted leave October 3, 2012.

ISSUE PRESENTED: Whether the defendant could be found to be a second felony offender based upon a Pennsylvania third-degree murder conviction when he was 15 yeas old, and a 15-year-old in New York could not be convicted of the New York analog of second-degree manslaughter. (Assigned counsel: Timothy P. Donaher, Monroe County Public Defender, 10 N. Fitzhugh St., Rochester, NY 14614.)

Issue before the Court: Where the defendant was raising a challenge to his predicate adjudication on the basis of an out-of-state conviction, was the issue reviewable in the Court of Appeals despite lack of objection on the ground now being raised, and whether the defendant’s infancy at the time he committed the Pennsylvania crime barred its use as a predicate in NY.

Held: A challenge to a predicate adjudication based on an out-of-state predicate falls within the "narrow exception" to the preservation rule permitting appellate review when the sentence’s illegality is readily discernible from the trial record. Here, where all the relevant information was before the trial court through the presentence report, the Court finds that the Pennsylvania crime could not be used as a predicate because it was the equivalent of man 2, a crime for which the defendant could not be prosecuted in NY on the ground of infancy.

CAL Observes: Santiago is an important decision and greatly beneficial to defendants, as the Appellate Division had been refusing to apply the Samms exception to challenges based on out-of-state predicates, and the First Department had also ruled that IAC 440s were not properly brought in such instances, leaving defendants wanting to challenge out-of-state predicate adjudications with little recourse. It is now clear that, as long as the pertinent information is discernible from the record on appeal, a challenge to the predicate can be raised even in the absence of specific objection. The error falls under the Samms exception to preservation that applies to illegal sentences.