Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 1, #1©

Issue: Felony DWI conviction as a predicate felony offense

In New York State, the general rule is that a second felony conviction within 10 years results in the person being sentenced as a predicate felony offender. Penal Law 70.06(2). Does this rule apply to all felony convictions?

It depends on which felony you are talking about, the prior felony or the current one.

In discussing the current offense, Penal Law 70.06(1)(a) describes a felony as one "defined in this chapter," i.e., within the Penal Law. Thus a defendant whose current conviction is a non-Penal Law felony (e.g., felony DWI) cannot be sentenced as a second felony offender. People v. Morris, 86 AD2d 763, 448 NYS2d 82 (4th Dept 1982); Muldoon and Feuerstein, Handling a Criminal Case in New York, sec. 21:102 (West Group 1999-2000).

What about the prior felony conviction? Can a previous non-Penal Law felony conviction serve as the basis for a predicate felony sentence? Case law, and the statute, say yes. People v. Shannon, 89 NY2d 1000, 657 NYS2d 194 (1997). Thus, two defendants whose criminal records are the same, but were obtained in different order, will be treated in a disparate fashion. A defendant whose first conviction in 1992 was for Grand Larceny 3rd and whose 1999 conviction is for Felony DWI will be sentenced as a first felony offender. But a defendant whose 1992 sentence was for Felony DWI and whose 1999 conviction is for Grand Larceny 3rd must be sentenced as a predicate felon. The anomalous result does not violate equal protection, according to several appellate decisions. See, e.g., Dillard v. LaVallee, 559 F2d 873 (2d Cir 1977).

ONE final note: If the current felony is for DWI, while not qualifying for predicate status, it may be used for persistency purposes. A defendant, for example, with three convictions for felony DWI (or other non-Penal Law felonies) may qualify for the discretionary status of persistent felony offender. See, Handling a Criminal Case in New York, sec. 21:111.

QUOTATION: "Not honesty alone, but the punctilio of an honor the most sensitive, is the standard of behavior." Judge Benjamin Cardozo in Meinhard v. Salmon, 249 NY 458, 464 (1928)

Gary Muldoon is the author of Handling a Criminal Case in New York (West Group 2006). Call 1-800-328-4880 or contact the West Group website at Cost of the soft cover edition is $241.00.

Criminal Law Slanguage of New York, Third Edition, by G. Edward Murray and Gary Muldoon, is published by LexisNexis Publications. Price: $19.00. Contact

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