People v. Martinez

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Monroe County Court for further proceedings in accordance with the following Memorandum: The presentence investigation report indicates that, prior to commission of the subject crimes, defendant had been convicted of grand larceny in the fourth degree, a class E felony, and that defendant was a second felony offender. Under the circumstances, the People were required to file a second felony offender statement with the court prior to sentencing, and the court was required to sentence defendant as a second felony offender (see, CPL 400.21). The failure to comply with those statutory mandates renders the sentence invalid as a matter of law (see, People v Scarbrough, 66 NY2d 673 , revg on dissent of Boomer, J., 105 AD2d 1107 , 1107-1109). We reach the issue sua sponte because an unlawful sentence cannot stand (see, People v Palmeri, 186 AD2d 1075 ; People v Mohammed, 151 AD2d 1018 , Iv denied 74 NY2d 815 ; People v Price, 140 AD2d 927 , 928; People v Peale, 122 AD2d 353 ). Thus, we modify the