The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined defendant should not have been sentenced as a second violent felony offender because the operative prior conviction occurred outside the 10-year look-back period. Defendant was convicted of assault and sentenced to probation in 1994. He subsequently violated probation and was sentenced to incarceration in 1995. The lower courts used the 1995 sentence, which was within the 10-year look-back. But the Court of Appeals determined the 1994 sentence controlled. The revocation of probation in 1995 did not annul the original 1994 sentence:
The People would have us believe that sentence was imposed with respect to the prior conviction twice — once, in 1994, when defendant was subject to a period of probation through the original sentence, and again in 1995, when defendant was subject to a period of incarceration through the resentence. To be sure, the period of probation was imposed as part of a revocable sentence (Penal Law § 60.01 [2] [a] [i]), which is a “tentative [punishment in] that it may be altered or revoked” (Penal Law § 60.01 [2] [b]). For all other purposes, however, a revocable sentence “shall be deemed to be a final judgment of conviction” (id.), and where “the part of the sentence that provides for probation is revoked, the court must sentence [a defendant] to imprisonment or to [a] sentence of imprisonment and probation” (Penal Law § 60.01 [4] [emphasis added]). The legislature’s reference to the revocation of the part of the sentence imposing probation suggests that the substitution of a different punishment — such as incarceration — for the probation a defendant has violated does not constitute a new sentence, but rather a replacement of the original, conditional penalty reflected in the sentence.
Put differently, to revoke a penalty of probation does not equate to annulling a sentence. People v Thompson, 2016 NY Slip Op 00997, CtApp 2-11-16
CRIMINAL LAW (SECOND VIOLENT FELONY OFFENDER, TEN-YEAR LOOK-BACK, DATE OF ORIGINAL SENTENCE TO PROBATION, NOT SUBSEQUENT SENTENCE FOR VIOLATION OF PROBATION, CONTROLS)/SENTENCING (SECOND VIOLENT FELONY OFFENDER, TEN-YEAR LOOK-BACK, DATE OF ORIGINAL SENTENCE TO PROBATION, NOT SUBSEQUENT SENTENCE FOR VIOLATION OF PROBATION, CONTROLS)/SECOND VIOLENT FELONY OFFENDER STATUS/(TEN-YEAR LOOK-BACK, DATE OF ORIGINAL SENTENCE TO PROBATION, NOT SUBSEQUENT SENTENCE FOR VIOLATION OF PROBATION, CONTROLS)