Issue Presented: Whether the prosecution’s failure to allege tolling in a predicate felony statement is something to which the defendant must object.

Held: Yes. In essentially one paragraph, the Court held that defendants must object. Because it was not “readily discernable” from the record that the sentence the court imposed was not within the permissible range, the narrow illegal sentence exception to preservation does not apply. In a footnote, the Court explained that defendants can still challenge these failures by C.P.L. § 440.20 motion or by seeking review in the interest of justice on direct appeal.

CAL Observes: With very little analysis from the Court, there is not a lot to observe about this prosecution appeal. The decision resolved a split among the Appellate Departments with the First Department being the sole court to repeatedly find the exception applied and that defendants did not need to object. The Court, however, seemed convinced that the issue was already decided in 1983 in a case that conveniently does not contain any facts and was not relied upon by the prosecution. 

In any event, the Court is again signaling that preservation is the law of the state and any exception to that requirement is going to be very narrowly construed. Especially in the context of the illegal sentence exception because the Court sees the availability of a C.P.L. § 440.20 motion as the solution. The onus is now on defendants to object to most errors in a predicate felony statement if you want to raise the issue on direct appeal.