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DEFENDANT’S ACTIONS UPON SEEING THE POLICE IN A HOUSING AUTHORITY BUILDING FREQUENTED BY TRESPASSERS JUSTIFIED INITIAL QUESTIONING; REMAND OF PRIOR CONVICTION FOR YOUTHFUL OFFENDER DETERMINATION DID NOT ALTER DATE OF THAT CONVICTION FOR PREDICATE-FELONY PURPOSES.

The First Department, over a two-justice dissent, determined: (1) the police were justified in following and questioning defendant who “retreated” into an elevator of a New York City Housing Authority (NYCHA) building upon seeing the police; (2) the defendant’s refusal to tell the police whether he lived in the building and a bulge in defendant’s clothing justified pulling up defendant’s sleeve, which revealed the tip of a machete; (3) the show up identification by a recent robbery victim was proper; (4) and remanding a prior conviction for a youthful offender determination  did not affect use of the prior conviction as a predicate felony in the current proceeding. The depth of the discussion of these issues cannot be fairly summarized here. The fact that the NYCHA building was a high crime area and was frequented by trespassers was deemed to justify the initial approach by the police to determine if defendant lived in the building:

 

… [T]he building’s trespass history, together with defendant’s apparently panicked attempt to avoid contact with them upon their attempt to enter the elevator, gave the officers the right to inquire of defendant. * * *

… [D]efendant is entitled to vacatur of his sentence for the earlier assault conviction and to a resentencing that considers whether he qualifies for youthful offender status … . Nevertheless, defendant is not entitled to vacatur of the sentence for the robbery conviction. It is true that, for a prior conviction to serve as a predicate violent felony conviction, “[s]entence upon such prior conviction must have been imposed before commission of the present felony” … . However, we find that a remand for an adjudication of youthful offender status is, for purposes of determining such sequentiality, analogous to a remand for the imposition of postrelease supervision under People v Sparber (10 NY3d 457 [2008]). A Sparber resentencing has been held not to upset sequentiality for purposes of determining whether the conviction for which the remand was ordered can serve as a predicate for multiple felony offender status … . People v Perez, 2016 NY Slip Op 05730, 1st Dept 8-4-16

CRIMINAL LAW (DEFENDANT’S ACTIONS UPON SEEING THE POLICE IN A HOUSING AUTHORITY BUILDING FREQUENTED BY TRESPASSERS JUSTIFIED INITIAL QUESTIONING; REMAND OF PRIOR CONVICTION FOR YOUTHFUL OFFENDER DETERMINATION DID NOT ALTER DATE OF THAT CONVICTION FOR PREDICATE-FELONY PURPOSES)/STREET STOPS (DEFENDANT’S ACTIONS UPON SEEING THE POLICE IN A HOUSING AUTHORITY BUILDING FREQUENTED BY TRESPASSERS JUSTIFIED INITIAL QUESTIONING)/SENTENCING (REMAND OF PRIOR CONVICTION FOR YOUTHFUL OFFENDER DETERMINATION DID NOT ALTER DATE OF THAT CONVICTION FOR PREDICATE-FELONY PURPOSES)/SECOND FELONY OFFENDERS (REMAND OF PRIOR CONVICTION FOR YOUTHFUL OFFENDER DETERMINATION DID NOT ALTER DATE OF THAT CONVICTION FOR PREDICATE-FELONY PURPOSES)/YOUTHFUL OFFENDER DETERMINATION (REMAND OF PRIOR CONVICTION FOR YOUTHFUL OFFENDER DETERMINATION DID NOT ALTER DATE OF THAT CONVICTION FOR PREDICATE-FELONY PURPOSES)

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