You are here: / / Persistent Felony Offender Statute Does Not Require Prior Felonies to be...

Persistent Felony Offender Statute Does Not Require Prior Felonies to be Equivalent to New York Felonies

The Fourth Department determined that the persistent felony offender statute did not require that the prior felonies taken into consideration for persistent felon status be equivalent to New York felonies:

The persistent felony offender statute … contains no language requiring that the underlying out-of-state conviction be for a crime that would constitute a felony in New York, i.e., “an offense for which a sentence to a term of imprisonment in excess of one year may be imposed” (Penal Law § 10.00 [5]), or that the elements of the foreign crime be equivalent to the elements of a New York crime (see § 70.10 [1] [b] [i]).  Rather, as noted by the Second Circuit in upholding the constitutionality of the persistent felony offender statute, “[s]ection 70.10 (1) (b) does not distinguish among felony convictions that arise under federal, New York State, or out-of-state law.  Thus, if the acts constitute a felony under federal or another state’s law, they will be deemed a felony for purposes of persistent offender status under [s]ection 70.10 even if there is no counterpart felony in New York law.  By contrast, under [s]ection 70.06 [the second felony offender statute], the underlying acts of a federal or out-of-state felony must be recognized as a felony in New York to qualify as a predicate felony” … .  People v Jones, 853, 4th Dept 9-27-13

 

You might also like
FAILURE TO COMPLETELY EXPLAIN POTENTIAL SENTENCES AND THE DISCREPANCY BETWEEN THE WRITTEN PLEA AGREEMENT AND THE COURT’S EXPLANATION INVALIDATED THE GUILTY PLEA.
SUPPORT MAGISTRATE SHOULD NOT HAVE AWARDED CHILD SUPPORT TO FATHER; MOTHER WAS ENTITLED TO ARREARS UNDER THE CIRCUMSTANCES OF THIS CASE (FOURTH DEPT).
THE PEOPLE DID NOT EXERCISE DUE DILIGENCE BEFORE STATING IN THE CERTIFICATE OF COMPLIANCE (COC) THAT COMPLAINANT DID NOT HAVE A CRIMINAL RECORD AND ANNOUNCING READINESS FOR TRIAL; IF DEFENSE COUNSEL KNEW OF COMPLAINANT’S CRIMINAL RECORD, THE DEFENSE WAS STATUTORILY REQUIRED TO ALERT THE PEOPLE TO THE DEFECT IN THE COC; MATTER REMITTED FOR DETERMINATION OF THE SPEEDY-TRIAL MOTION; EXTENSIVE TWO-JUSTICE DISSENT (FOURTH DEPT).
No Notice of Claim Requirement for Suit Against Sheriff/Sheriff Can Be Liable for Negligently Training and Supervising Deputies/Whether Sheriff Entitled to Governmental Immunity Cannot Be Decided at the Pleading Stage
Whether the Insurer Is Obligated to Indemnify the Driver Turns on Whether the Driver Acted Intentionally When His Vehicle Struck the Rear of Decedent’s Vehicle—-There Was a Question of Fact Whether the Incident Was an Accident or the Result of Intentional Conduct
THE COUNTY DEMONSTRATED THERE WAS NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, THE DEFENDANTS’ ACTIONS WERE DISCRETIONARY AND THEREFORE PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, AND THERE IS NO CAUSE OF ACTION IN NEW YORK FOR NEGLIGENT INVESTIGATION; PLAINTIFF’S WRONGFUL DEATH ACTION BASED UPON THE DEFENDANTS’ ALLEGED FAILURE TO PROTECT PLAINTIFF’S DECEDENT FROM ABUSE BY FAMILY MEMBERS DISMISSED (FOURTH DEPT).
FORMER STUDENT’S ALLEGATIONS DEFENDANT COLLEGE BREACHED ITS AGREEMENT THAT IT WOULD NOT DISCLOSE ITS DISCIPLINARY PROCEEDINGS AGAINST THE STUDENT TO SCHOOLS TO WHICH THE STUDENT APPLIED FOR ADMISSION PROPERLY SURVIVED THE COLLEGE’S MOTION TO DISMISS; ADOPTING AND APPLYING THE HEIGHTENED STANDARD FOR DEFAMATION BY IMPLICATION, THE DEFAMATION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).
EVEN THOUGH DEFENDANT CLAIMED THE STABBING INJURIES WERE ACCIDENTAL, HE WAS ENTITLED TO A JURY INTSTRUCTION ON THE JUSTIFICATION DEFENSE (FOURTH 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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Judge Properly Relied on Presentence Report to Refuse to Adjudicate Defendant... Court, Not Prosecutor, Must Determine Whether Defendant Is Eligible for Youthful...