Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 4, #18©

Issue: Sequentiality of convictions for enhanced felony sentencing

There are four types of enhanced felony sentences in New York:  predicate, predicate violent, persistent, and persistent violent.  With each of the four, a prior felony conviction is necessary.  Explicit in each statute is the requirement of sequentiality.

"Sequentiality" simply means that any felony used to increase the sentence on another felony must not overlap in terms of time.  If the earlier felony (either its commission or its sentencing) does overlap, that earlier felony cannot be used to enhance the sentence on the later felony.

All four enhanced sentencing statuses are defined in Penal Law article 70, and the statutes are in pari materia. As to sequentiality, §70.06(1)(b)(ii) states:  "Sentence upon such prior conviction must have been imposed before commission of the present felony." Parallel provisions are in §§ 70.04(1)(b)(ii) and 70.10(1)(b)(ii).

The persistent violent felony offender statute, § 70.08(1)(b), kicks in the predicate violent felony standard. First example -- Predicate.   A defendant commits Felony 1 on 1/1/93, is charged and pleads guilty to the felony in 1994, but is not sentenced until 1/20/98.  The same defendant commits Felony 2 on 1/15/98, is arrested soon after, and pleads guilty to Felony 2 on 8/14/98. Can Felony 1 be used to enhance Felony 2's sentence? No.  Even  though the first felony was committed long before the second, the defendant was not sentenced on #1 until after #2 was committed.  The sentence the defendant receives on Felony 2 must be for a first felony offender, not for a predicate felon. See People v Serrano, 181 AD2d 477, 580 NYS2d 758 (1st Dept 1992).

The same is true for predicate violent status. People v Samms, 95 NY2d 52, 710 NYS2d 310 (2000); Handling a Criminal Case in New York, 2003-2004 edition, § 21:124 (West Group). With a candidate for a persistency finding, the sequentiality rule applies twice. Second example -- Persistent.  Let's say a person commits a whole bunch of felonies in a single transaction: Burglary 2nd, Grand Larceny 3rd, Mopery 2nd, Criminal Mischief 3rd.  The defendant is convicted and sentenced on all of these, and serves his time.  This defendant then commits a new felony and is convicted on it. Can the prior felonies alone serve as a basis for persistency? No. Two prior sequential convictions are required. Handling, § 21:125. See also, Annotation, 7 ALR5th 263. Third example -- Persistent. (Yes, again; if nothing else, I am persistent.)

There is a mindlessly simple way to figure out if a prior conviction can be used as to enhance: use a time line.

Felony 1
Committed  Sentenced
1/96 -------- 12/96
    Felony 2
    Committed         Sentenced
    2/97 -------------- 9/97
            Felony 3
            Committed            Sentenced
            7/97 ---------------- 12/97

Upon conviction of # 3, may the prosecutor use the two prior felonies to request a persistent felony offender status?  No. Felonies 2 and 3 overlap. But the defendant can be sentenced as a predicate offender, since there is a time gap - sequentiality - after the conviction on Felony 1. The issue of sequentiality may be raised on appeal, even if unpreserved at the time of sentencing. People v Samms, 95 NY2d 52, 710 NYS2d 310 (2000); see also People v Eason, 168 Misc2d 44, 641 NYS2d 1018 (Sup Ct 1996) (CPL 440.20 motion).


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