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THE FELONY WHICH WAS THE BASIS FOR DEFENDANT’S SECOND FELONY OFFENDER STATUS DID NOT MEET THE CRITERIA FOR A PREDICATE FELONY (THIRD DEPT). ​

The Third Department, reversing County Court, determined the felony which was the basis of defendant’s second felony offender status did not meet the criteria for a predicate felony:

In order for a prior conviction to constitute a predicate felony, the “sequentiality requirement” must be satisfied, which means “that the ‘sentence upon such prior conviction must have been imposed before commission of the present felony'” … . Defendant was sentenced on the predicate felony forming the basis for her second felony status on the same day that she was sentenced on the instant offense. As such, that felony offense — referenced in the predicate felony information as an August 27, 2020 conviction for criminal sale of a controlled substance in the fifth degree — could not be used to meet the requirements for sentencing defendant as a second felony offender on the instant offense. People v Hayes, 2022 NY Slip Op 06965, Third Dept 12-8-22

Practice Point: In order to meet the criteria for a predicate felony re: second felony offender status, the sentence for the prior conviction must have been imposed before the instant felony was committed.

 

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