Relates to criteria for determining prior felony offender status

This measure would amend the Penal Law to modify the criteria for determining whether a defendant qualifies as a second felony offender (PL § 70.06), second violent felony offender (PL § 70.04) and persistent felony offender (PL § 70.10). Changes in these statutes will necessarily apply by reference to a defendant's qualification to be considered a second child sexual assault felony offender (PL 70.07) and persistent violent felony offender (PL § 70.08).

Under current law, a defendant's predicate status turns on whether the sentence for the prior felony was imposed before commission of the present felony (PL §§ 70.04(1)(b)(ii); 70.06(1)(b)(ii)); 70.10(1)(b)(ii)). Moreover, except for a persistent felony offender, the commission of the present felony must occur within ten years of the sentence on the earlier felony, not counting periods of incarceration (PL §§ 70.04(1)(b)(iv); 70.06(1)(b)(iv)). These requirements serve a fundamental purpose of enhanced sentencing to impose more severe punishment on persons who continue to commit serious crimes relatively soon after having been subjected to punishment for other serious criminal conduct (People v Morse, 62 NY2d 205, 221(1984)). It is a defendant's disregard for the "chastening effect of sentence on the prior conviction" that underlies the policy of New York's multiple offender laws (People v Morse, supra, 62 NY2d 205 at 219). Thus, a critical calculation for determining predicate felony status is the sentencing date of the prior conviction. In most cases, this makes perfect sense because it is punishment that triggers the "chastening effect."

Recent court opinions, however, illustrate the potential for gamesmanship that the current statute engenders. In People v Acevedo, (17 NY3d 297 (2011)), a defendant sentenced as a second felony drug offender with a prior violent felony, successfully attacked his earlier violent felony sentence on the ground that the sentencing court in the earlier case failed to add a period of post release supervision to his prison term (see People v Sparber, 10 NY3d 457 (2008)). Applying Sparber, the original sentencing court vacated defendant's sentence and resentenced him to the same prison term and no additional period of post release supervision (see PL § 70.85). Once resentenced, defendant moved to vacate the drug felony sentence arguing that he should now be considered a first felony drug offender because the sentence on the violent felony conviction no longer preceded the commission of the drug offense. The Court of Appeals rejected the defendant's argument, but only because defendant's motion for resentence was a tactical measure to avoid predicate status on the drug felony. By contrast, under similar circumstances, the Appellate Division, First Department, agreed with a defendant who claimed he should be sentenced as a first felony offender once resentenced on an earlier conviction because post release supervision had not been made part of the original sentence (People v Butler, 88 AD3d 470 (1' Dept

2011)). The Butler court distinguished Acevedo because the resentencing proceeding on the first felony case was not done as a tactical measure, but had been initiated by the New York State Division of Parole pursuant Correction Law § 601d (88 AD3d at 472; c.f., People v Naughton, 93 AD2d 809 (2d Dept 2012) lv denied, 19 NY3d 865 (2012); People v Boyer, 91 AD3d 1183 (3d Dept 2012) lv granted, 19 AD3d 1024 (2012)).

We believe that such technical applications of New York's recidivist statutes do not further the principle of enhancing punishment of defendants who reoffend relatively soon after being convicted and sentenced. When the conviction itself is not undermined, and the defendant is punished before commission of a new offense, subsequent resentences do not diminish the "chastening effect" of the earlier imposition of punishment on the conviction. It also is unwarranted to reset the ten year look back simply because a court resentences a defendant as a result of an initial sentencing error. It is only the recidivist who benefits by the current rule, and a defendant who remains conviction free after the original sentence should not be compelled to choose between contesting an illegal sentence or extending the ten year look-back period.

This measure provides that where a defendant has been resentenced following either a motion to set aside a sentence or an appeal of the sentence, and where the underlying conviction has not been disturbed, for purposes of determining defendant's predicate status, the sentence date shall be considered the initial sentence following the conviction.

This measure would take effect immediately, and would apply to all criminal actions commenced on or after such effective date.

Legislative History:

None. New proposal.