You are here: / / THE TEN-YEAR LOOKBACK FOR A PERSISTENT VIOLENT FELONY OFFENDER DESIGNATION...

THE TEN-YEAR LOOKBACK FOR A PERSISTENT VIOLENT FELONY OFFENDER DESIGNATION FOR SENTENCING PURPOSES IS TOLLED BY PRESENTENCE, AS WELL AS POST-SENTENCE, INCARCERATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over an extensive two-judge dissenting opinion, determined the ten-year lookback for a persistent violent felony offender designation is tolled by any presentence period of incarceration:

A person convicted of a violent felony offense is a “persistent violent felony offender” for sentencing purposes if that person has “two or more predicate violent felony convictions” (Penal Law § 70.08 [1] [a], [b]). Those potentially qualifying felony convictions must satisfy the timing requirement set forth in Penal Law § 70.04, namely that the sentence on the prior crime must have been imposed not more than ten years before the commission of the current felony (Penal Law § 70.04 [1] [b] [iv]). This ten-year lookback period is extended by any period of incarceration between commission of the prior felony and commission of the current felony (Penal Law § 70.04 [1] [b] [v]). Defendant challenges any extension of the ten-year lookback period using time he spent in presentence incarceration on his earliest qualifying felony conviction. We now hold that pursuant to Penal Law § 70.04, defendant’s presentence incarceration time did extend the ten-year period and therefore defendant was properly sentenced as a persistent violent felony offender. People v Hernandez, 2025 NY Slip Op 00904, CtApp 2-18-25

Practice Point: The ten-year lookback for a persistent violent felony offender designation is tolled by both presentence and post-sentence incarceration.

 

You might also like
Reduced Sentences Pursuant to the Drug Law Reform Act Apply to Those on Parole As Well As Those Who Are Incarcerated
The Court’s Failure to Respond to Jury Note Requesting Transcripts of Recorded Phone Calls, Portions of Which Were Translated from Spanish to English, Mandated Reversal
Experts’ Failure to Address Proximate Cause Precluded Summary Judgment
Destruction of Video that May Have Been Relevant to the Defense Required Adverse Inference Charge
A Defendant Who Has Been Found Mentally Unfit to Proceed To Trial Cannot Be Subjected to a Parole Revocation Proceeding
UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE, AN OBJECTION WAS NECESSARY TO PRESERVE THE ERROR RELATED TO DEFENDANT’S ABSENCE FROM A SIDEBAR CONFERENCE ABOUT A PROSPECTIVE JUROR; DEFENDANT SUBSEQUENTLY WAIVED HIS RIGHT TO BE PRESENT AND WAS GIVEN THE OPPORTUNITY TO OBJECT TO HIS ABSENCE FROM THE PRE-WAIVER SIDEBAR (CT APP).
No Notice of Claim Requirement for Human Rights Law Action Against City/Questions of Fact About City’s Motivation for Allowing Firefighter Promotion Eligibility Lists to Expire Precluded Summary Judgment in Favor of White Firefighters Alleging Reverse, Disparate Treatment Racial Discrimination
EVEN WHERE AN INJURED WORKER SETTLES WITH A THIRD-PARTY BEFORE THE WORKERS’ COMPENSATION SCHEDULE LOSS OF USE IS DETERMINED, THE EMPLOYER’S CARRIER MUST SHARE IN THE LITIGATION COSTS (CT APP).

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

A MUNICIPALITY OWES A CHILD IT PLACES IN FOSTER CARE A SPECIAL DUTY SUCH THAT... WHERE PLAINTIFF HAS FAILED TO FILE A NOTE OF ISSUE BY A COURT-ORDERED DEADLINE,...