Burglary: People v. Nix

Daily Record Staff//March 24, 2010//

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Appellate Division, Fourth Department

Predicate Felony Sentencing

People v. Nix
KA 09-00138
Appealed from Supreme Court, Erie County

Background: The defendant was convicted after a bench trial of second-degree burglary and was sentenced as a second felony offender. On appeal he challenged whether his trial attorney provided effective assistance of counsel.

Ruling: There are some situations in which a defendant should not appeal and this case appears to be one of them. The conviction is affirmed, but the case was remitted for resentencing. Instead of being a “second felony offender,” the defendant should have been sentenced as a “second violent felony offender.” The sentencing court’s failure to follow the statutory mandate renders the sentence invalid as a matter of law.

Susan C. Ministero for the defendant, and Michelle L. Cianciosa, Erie County District Attorney’s Office

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