Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 3, #2©

ISSUE: How (and whether) a defendant can challenge the constitutionality of a previous conviction.

THE validity of a defendant's prior conviction may come up in a variety of situations: in a predicate or persistent felony offender proceeding; at grand jury; at trial; or in a CPL 440.10 proceeding. To what extent may a defendant challenge the constitutionality of the prior conviction? 

The reason for the challenge may be due to ineffective assistance of counsel on the first go-around. Or, that the defendant was not properly advised of his rights. Or, any one of a number of other constitutional infirmities.

In a predicate (second felony) or persistent (at least two prior felony convictions) felony offender proceeding, the defendant by statute is entitled to challenge the constitutionality of a prior conviction. CPL 400.15(7)(b); 400.21(7)(b); Muldoon and Feuerstein, Handling a Criminal Case in New York secs. 21:142, 21:154 West Group 2000).

Some crimes have an increased level of punishment for a person who commits the same crime again during a certain time period. The best known example is Felony DWI: the first DWI is a misdemeanor, but the second charge in a ten-year period may be prosecuted as a felony. Many other such crimes exist: Unauthorized use of a vehicle, Stalking, Harassment, and Aggravated harassment, to name a few.

With felony DWI and such offenses, the prior conviction is an element of the crime, raising it to a higher level. (In contrast, with a predicate or persistent situation, the prior conviction raises the level of punishment.)

With these enhanced offenses, the CPL provides no procedural vehicle to challenge the prior conviction. And, the Court of Appeals has not recognized one either. Specifically, a motion in limine, challenging the prior conviction, is not allowed in the current action. People v Knack, 72 NY2d 825, 530 NYS2d 541 (1988).

The defendant might still move to set aside the previous conviction in the court where the conviction occurred. This is a motion under CPL 440.10, based on constitutional grounds. CPL 440.10(1)(h). If the prior conviction was the result of a guilty plea, though, the grounds for setting it aside are limited. Handling, sec. 22:56.

With an enhanced crime, the DA may introduce the previous judgment of conviction to establish that element to the grand jury. Again, there is no procedural vehicle to challenge that evidence at grand jury. See also, People v Thomas, 213 AD2d 73, 628 NYS2d 707 (2d Dept 1995), affd. 88 NY2d 821, 644 NYS2d 491 (1996) (no procedural vehicle for Sandoval limitation at grand jury).

At a felony trial, the prior conviction is included in a document separate from the indictment. The defendant may admit or deny the allegation of a prior conviction contained in this document, a "special information." CPL 200.60(1), (2); Handling, 3:29 et seq. The constitutionality of the prior conviction cannot be raised at this point. People v Cagle, 158 AD2d 931, 551 NYS2d 95 (4th Dept 1990).

Where the issue is not the prior conviction's constitutionality but rather, whether the defendant is the same person as the person previously convicted, there is a method of raising this. After grand jury, the motion to inspect grand jury minutes is the appropriate vehicle. The fact that someone with the same name was convicted of a crime is insufficient to establish that it is the same person as the defendant. People v Van Buren, 82 NY2d 878, 609 NYS2d 170 (1993); Handling, sec. 6:79.

The issue of identity may be raised at trial as well. People v Vollick, 148 AD2d 950, 539 NYS2d 187 (4th Dept 1989), affd 75 NY2d 877, 554 NYS2d 873 (1990). Cf. People v Hudson, 237 AD2d 943, 655 NYS2d 219 (4th Dept 1997).

: "One should not be permitted to accomplish by indirection that which is prohibited by direction." People v Isaacson, 44 NY2d 511, 406 NYS2d 714 (1978).


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