Preservation is an important concept in the field of appellate review. Lack of preservation often forecloses review of an issue on appeal. In the criminal context, there are, however, some important exceptions to the preservation requirement. One of those exceptions is a challenge to an unlawful sentence. This "is a narrow exception to [the] preservation rule permitting appellate review when a sentence's illegality is readily discernible from the trial record." People v. Santiago, 22 N.Y.3d 900, 903 (2013). In a recent case, People v. Lashley, 37 N.Y.3d 1140 (2021)), decided Dec. 14, 2021, the Court of Appeals rejected application of the illegal sentence exception where a defendant claimed that an enhanced sentence based upon a predicate felon adjudication was illegal because the prosecution relied on a facially insufficient predicate statement. The statement failed to set forth the necessary tolling period for a predicate conviction that was over 10 years old. The Court of Appeals' short memorandum decision in Lashley provides limited guidance as to why the illegal sentence exception did not apply in that scenario. This article aims to clarify the impact of Lashley on the illegal sentence exception to the preservation requirement where there is a claim of illegal predicate felon adjudication.

In People v. Lashley, defendant was adjudicated a second felony offender pursuant to P.L. §70.06. (Pursuant to P.L. §70.06, for a defendant to be deemed a predicate felon or second felony offender, the defendant must have a prior felony conviction in the past 10 years. In the event the defendant was incarcerated, the 10 years starts from the completion of the incarceration.) As a result, defendant was subject to an enhanced sentence regarding her guilty plea to second degree criminal possession of a forged instrument, based on an April 1, 2016, incident in which she opened a store credit card account using a license bearing another person's name. The problem in Lashley arose because, under Penal Law 70.06(1)(b)(iv)(v), a court may sentence a defendant as a second felony offender, only if the defendant was sentenced on the prior felony offense within 10 years of the commission of the instant offense. Periods of incarceration toll the 10-year period. It is the prosecution's burden to establish a tolling period, which must be affirmatively alleged in a predicate statement pursuant to CPL §400.21[2]).