You are here: / / THE FEDERAL CRIME WHICH WAS USED TO ENHANCE DEFENDANT’S SENTENCE...

THE FEDERAL CRIME WHICH WAS USED TO ENHANCE DEFENDANT’S SENTENCE WAS NOT A FELONY IN NEW YORK; DEFENDANT’S SECOND FELONY ADJUDICATION VACATED (SECOND DEPT).

The Second Department, vacating defendant’s second felony offender adjudication, noted that federal conviction did not constitute a felony in New York for the purpose of enhanced sentencing:

… [T]he defendant was improperly adjudicated as a second felony offender based on his federal conviction of assault with a dangerous weapon in aid of racketeering, because that predicate crime does not require actual injury as one of its elements (see 18 USC § 1959[a][3]) and, thus, does not constitute a felony in New York for the purpose of enhanced sentencing … . People v Odom, 2023 NY Slip Op 06756, Second Dept 12-27-23

Practice Point: If a federal crime does not meet the definition of a felony in New York it cannot be used to enhance defendant’s sentence. Here the federal crime did not include actual injury as one of its elements and therefore did not constitute a felony in New York. Defendant’s second felony offender adjudication was vacated.

 

You might also like
DEFENDANT WAS NOT ACTING IN BAD FAITH IN SEEKING THE TESTIMONY OF CERTAIN WITNESSES; THE TESTIMONY SHOULD NOT HAVE BEEN PRECLUDED; CONVICTIONS REVERSED (SECOND DEPT).
Not Enough Time Passed to Invoke Constructive Notice of Icy Condition Under “Storm Progress Rule”
CALIFORNIA STATUTE IS A PROCEDURAL STATUTE OF LIMITATIONS, NOT A SUBSTANTIVE STATUTE OF REPOSE, THEREFORE THE STATUTE WOULD NOT BE APPLIED IN A NEW YORK ACTION (SECOND DEPT).
SUPREME COURT SHOULD HAVE DETERMINED WHETHER THE MATTER WAS ARBITRABLE INSTEAD OF SENDING IT TO AN ARBITRATION PANEL, THE APPELLANTS ARGUED THEY WERE NOT PARTIES TO THE AGREEMENT WITH THE ARBITRATION CLAUSE (SECOND DEPT).
PLAINTIFF COLLEGE SOCCER PLAYER ASSUMED THE RISK OF INJURY FROM BEING STRUCK IN THE HEAD BY A SOCCER BALL, SUFFERING A CONCUSSION, AND THEREAFTER BEING LEFT IN THE GAME, ALLEGEDLY EXACERBATING THE INJURY (SECOND DEPT).
SUPREME COURT DID NOT CITE ANY “EXTRAORDINARY CIRCUMSTANCES” TO JUSTIFY ITS SUA-SPONTE DISMISSAL OF THE COMPLAINT IN THIS DIVORCE ACTION (SECOND DEPT). ​
BECAUSE THE COURT DID NOT IMPOSE CONDITIONS ON THE PLEAS AND SENTENCING COMMITMENTS, THE SENTENCE SHOULD NOT HAVE BEEN ENHANCED BASED ON THE PURPORTED VIOLATIONS OF CERTAIN CONDITIONS, INCLUDING THE DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, ALTHOUGH THE ISSUE WAS NOT PRESERVED, THE APPELLATE COURT CONSIDERED IT IN THE INTEREST OF JUSTICE (SECOND DEPT).
THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S MOTORCYCLE WAS SO CLOSE AS TO CONSTITUTE AN IMMEDIATE HAZARD WHEN DEFENDANT ATTEMPTED TO MAKE A LEFT TURN ACROSS PLAINTIFF’S LANE OF TRAFFIC; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN THIS STREET STOP CASE, THE POLICE OFFICER’S CLAIM TO HAVE SEEN THE... THE PROSECUTOR’S REASONS FOR STRIKING THREE BLACK PROSPECTIVE JURORS WERE...