Posts Tagged ‘persistent felony offender’

Predicate Felonies (as described in NY Penal Law Chapter 70)

Friday, November 30th, 2012

A conviction for a New York state felony is very serious and can involve lengthy sentences of probation or even incarceration.  However, what many people do not realize is that a felony conviction can also greatly increase the possible sentence a person can receive on a subsequent felony conviction, especially so when the prior conviction is a predicate felony conviction.

Second felony offenders – or people with predicate felony convictions being sentenced on a new felony – are most commonly classified as either second violent felony offenders, regular (non-violent) felony offenders, or second felony drug offenders.  Some other classifications for “predicate felons” include second felony child sexual assault offenders, persistent felony offenders, and persistent violent felony offenders.

The definition of predicate violent felony conviction is explained in Penal Law Section 70.04.  It explains: .

S 70.04 Sentence of imprisonment for second violent felony offender.
  1. Definition of second violent felony offender.
  (a) A second violent felony offender is a person who stands convicted
of a violent felony offense as defined in subdivision one of section
70.02 after having previously been subjected to a predicate violent
felony conviction as defined in paragraph (b) of this subdivision.
  (b) For the purpose of determining whether a prior conviction is a
predicate violent felony conviction the following criteria shall apply:
  (i) The conviction must have been in this state of a class A felony
(other than one defined in article two hundred twenty) or of a violent
felony offense as defined in subdivision one of section 70.02, or of an
offense defined by the penal law in effect prior to September first,
nineteen hundred sixty-seven, which includes all of the essential
elements of any such felony, or in any other jurisdiction of an offense
which includes all of the essential elements of any such felony for
which a sentence to a term of imprisonment in excess of one year or a
sentence of death was authorized and is authorized in this state
irrespective of whether such sentence was imposed;
  (ii) Sentence upon such prior conviction must have been imposed before
commission of the present felony;
  (iii) Suspended sentence, suspended execution of sentence, a sentence
of probation, a sentence of conditional discharge or of unconditional
discharge, and a sentence of certification to the care and custody of
the division of substance abuse services, shall be deemed to be a
sentence;
  (iv) Except as provided in subparagraph (v) of this paragraph,
sentence must have been imposed not more than ten years before
commission of the felony of which the defendant presently stands
convicted;
  (v) In calculating the ten year period under subparagraph (iv), any
period of time during which the person was incarcerated for any reason
between the time of commission of the previous felony and the time of
commission of the present felony shall be excluded and such ten year
period shall be extended by a period or periods equal to the time served
under such incarceration;
  (vi) An offense for which the defendant has been pardoned on the
ground of innocence shall not be deemed a predicate violent felony
conviction.
  * 2. Authorized sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a second
violent felony offender the court must impose a determinate sentence of
imprisonment which shall be in whole or half years. Except where
sentence is imposed in accordance with the provisions of section 70.10,
the term of such sentence must be in accordance with the provisions of
subdivision three of this section.
* NB Effective September 1, 2013
  * 2.  Authorized  sentence.  When the court has found, pursuant to the
provisions of the criminal procedure law, that  a  person  is  a  second
violent  felony offender the court must impose an indeterminate sentence
of imprisonment. Except where sentence is imposed in accordance with the
provisions of section 70.10, the maximum term of such sentence  must  be
in  accordance  with the provisions of subdivision three of this section
and the minimum period of imprisonment under such sentence  must  be  in
accordance with subdivision four of this section.
* NB Effective September 1, 2013
  * 3. Term of sentence. The term of a determinate sentence for a second
violent felony offender must be fixed by the court as follows:
  (a) For a class B felony, the term must be at least ten years and must
not exceed twenty-five years;
  (b)  For  a  class C felony, the term must be at least seven years and
must not exceed fifteen years; and
  (c) For a class D felony, the term must be at  least  five  years  and
must not exceed seven years.
  (d)  For  a  class E felony, the term must be at least three years and
must not exceed four years.
* NB Effective September 1, 2013
  * 3. Maximum term of sentence. The maximum term  of  an  indeterminate
sentence for a second violent felony offender must be fixed by the court
as follows:
  (a)  For  a class B felony, the term must be at least twelve years and
must not exceed twenty-five years;
  (b) For a class C felony, the term must be at least  eight  years  and
must not exceed fifteen years; and
  (c)  For  a  class  D felony, the term must be at least five years and
must not exceed seven years.
  (d) For a class E felony, the term must be at least four years.
* NB Effective September 1, 2013
  * 4.  Minimum  period  of  imprisonment.   The   minimum   period   of
imprisonment under an indeterminate sentence for a second violent felony
offender  must  be  fixed  by  the court at one-half of the maximum term
imposed and must be specified in the sentence.
* NB Effective September 1, 2013

Similarly, the definition of Second Felony Offender comes from Penal Law Section 70.06.  It explains:

S 70.06 Sentence of imprisonment for second felony offender.
  1. Definition of second felony offender.  (a) A second felony offender
is a person, other than a second violent felony offender as defined in
section 70.04, who stands convicted of a felony defined in this chapter,
other than a class A-I felony, after having previously been subjected to
one or more predicate felony convictions as defined in paragraph (b) of
this subdivision.
  (b) For the purpose of determining whether a prior conviction is a
predicate felony conviction the following criteria shall apply:
  (i) The conviction must have been in this state of a felony, or in any
other jurisdiction of an offense for which a sentence to a term of
imprisonment in excess of one year or a sentence of death was authorized
and is authorized in this state irrespective of whether such sentence
was imposed;
  (ii) Sentence upon such prior conviction must have been imposed before
commission of the present felony;
  (iii) Suspended sentence, suspended execution of sentence, a sentence
of probation, a sentence of conditional discharge or of unconditional
discharge, and a sentence of certification to the care and custody of
the division of substance abuse services, shall be deemed to be a
sentence;
  (iv) Except as provided in subparagraph (v) of this paragraph,
sentence must have been imposed not more than ten years before
commission of the felony of which the defendant presently stands
convicted;
  (v) In calculating the ten year period under subparagraph (iv), any
period of time during which the person was incarcerated for any reason
between the time of commission of the previous felony and the time of
commission of the present felony shall be excluded and such ten year
period shall be extended by a period or periods equal to the time served
under such incarceration;
  (vi) An offense for which the defendant has been pardoned on the
ground of innocence shall not be deemed a predicate felony conviction.
  * 2. Authorized sentence. Except as provided in subdivision five or
six of this section, when the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a second
felony offender the court must impose an indeterminate sentence of
imprisonment.  The maximum term of such sentence must be in accordance
with the provisions of subdivision three of this section and the minimum
period of imprisonment under such sentence must be in accordance with
subdivision four of this section.
* NB Effective September 1, 2013
  * 2. Authorized sentence. Except as provided in  subdivision  five  of
this  section,  or  as  provided in subdivision five of section 70.80 of
this article, when the court has found, pursuant to  the  provisions  of
the  criminal  procedure  law, that a person is a second felony offender
the court must impose an indeterminate  sentence  of  imprisonment.  The
maximum  term of such sentence must be in accordance with the provisions
of  subdivision  three  of  this  section  and  the  minimum  period  of
imprisonment  under such sentence must be in accordance with subdivision
four of this section.
  * NB Effective September 1, 2013
  * 3. Maximum term of sentence. Except as provided in subdivision  five
or  six  of  this section, or as provided in subdivision five of section
70.80 of this article, the maximum term of an indeterminate sentence for
a second felony offender must be fixed by the court as follows:
  (a) For a class A-II felony, the term must be life imprisonment;
  (b) For a class B felony, the term must be at  least  nine  years  and
must not exceed twenty-five years;
  (c) For a class C felony, the term must be at least six years and must
not exceed fifteen years;
  (d)  For  a  class  D felony, the term must be at least four years and
must not exceed seven years; and
  (e) For a class E felony, the term must be at least  three  years  and
must  not  exceed four years; provided, however, that where the sentence
is for the class E felony offense specified in section  240.32  of  this
chapter,  the  maximum  term  must  be at least three years and must not
exceed five years.
  * NB Effective until September 1, 2013
  * 3. Maximum term of sentence. Except as provided in subdivision  five
of  this section, or as provided in subdivision five of section 70.80 of
this article, the maximum term of an indeterminate sentence for a second
felony offender must be fixed by the court as follows:
  (a) For a class A-II felony, the term must be life imprisonment;
  (b) For a class B felony, the term must be at  least  nine  years  and
must not exceed twenty-five years;
  (c) For a class C felony, the term must be at least six years and must
not exceed fifteen years;
  (d)  For  a  class  D felony, the term must be at least four years and
must not exceed seven years; and
  (e) For a class E felony, the term must be at least  three  years  and
must not exceed four years.
  * NB Effective September 1, 2013
  4.   Minimum  period  of  imprisonment.  (a)  The  minimum  period  of
imprisonment for a second felony offender  convicted  of  a  class  A-II
felony  must  be fixed by the court at no less than six years and not to
exceed twelve and one-half years and must be specified in the  sentence,
except  that  for  the  class A-II felony of predatory sexual assault as
defined in section 130.95 of this chapter or the class  A-II  felony  of
predatory sexual assault against a child as defined in section 130.96 of
this  chapter,  such minimum period shall be not less than ten years nor
more than twenty-five years.
  (b) Except as  provided  in  paragraph  (a),  the  minimum  period  of
imprisonment  under  an  indeterminate  sentence  for  a  second  felony
offender must be fixed by the court at  one-half  of  the  maximum  term
imposed and must be specified in the sentence.
  * 6.  Determinate  sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that  a  person  is  a  second
felony  offender  and the sentence to be imposed on such person is for a
violent felony offense, as defined in subdivision one of section  70.02,
the court must impose a determinate sentence of imprisonment the term of
which must be fixed by the court as follows:
  (a)  For  a  class B violent felony offense, the term must be at least
eight years and must not exceed twenty-five years;
  (b) For a class C violent felony offense, the term must  be  at  least
five years and must not exceed fifteen years;
  (c)  For  a  class D violent felony offense, the term must be at least
three years and must not exceed seven years; and
  (d) For a class E violent felony offense, the term must  be  at  least
two years and must not exceed four years.
  * NB Repealed September 1, 2013
  * 7.  Notwithstanding  any  other  provision  of law, in the case of a
person sentenced for a specified  offense  or  offenses  as  defined  in
subdivision  five  of  section 410.91 of the criminal procedure law, who
stands convicted of no other felony offense, who has not previously been
convicted of either a violent felony offense as defined in section 70.02
of this article, a class A felony offense or a class B  felony  offense,
and  is  not  under  the  jurisdiction  of  or  awaiting delivery to the
department  of  corrections  and  community  supervision,  the court may
direct that such sentence be executed as a parole  supervision  sentence
as  defined  in  and  pursuant  to  the procedures prescribed in section
410.91 of the criminal procedure law.
  * NB Repealed September 1, 2013

In short, a person becomes a Second Felony Offender when he is convicted of a felony and has been previously convicted of a felony in the prior ten years (and one becomes a Second Violent Felony Offender by being convicted of a violent felony offense after having been convicted of a previous violent felony offense in the last ten years).  In calculating that “ten year period,” one must exclude any time that the person was incarcerated between the time of his arrest on the new felony conviction and the time of his sentencing on the prior felony.  Thus, if a person were say convicted of a felony in 1997 and subsequently spent ten years in jail, he would be a second felony offender (and the 1997 conviction would be a predicate felony conviction) if convicted of another felony in 2012, because those ten years of incarceration between 1997 and 2012 would be excluded from the calculation of time, leaving that period as five years for purposes of this adjudication.

Once one becomes eligible for sentencing for a second felony offense (or second violent felony offense or second drug felony offense), the potential sentences for that person increase significantly.  Though not a perfect or exact summary, a sentencing chart is available here.

In short, if you or a loved one are facing a possible conviction for a second felony offense, you should strongly consider retaining an experienced criminal defense attorney, as the stakes – and possible sentences – are especially high.