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THE PERSISTENT FELONY OFFENDER STATEMENT WAS INADEQUATE BECAUSE IT DID NOT CLEARLY INDICATE THE PERIODS OF DEFENDANT’S PRIOR INCARCERATION; THEREFORE, BECAUSE THE TEN-YEAR CUT-OFF PERIOD IS TOLLED DURING INCARCERATION, IT COULD NOT BE DETERMINED WHETHER DEFENDANT’S PRIOR FELONIES FELL WITHIN THE TEN-YEAR CUT-OFF PERIOD FOR A VALID PERSISTENT FELONY OFFENDER SENTENCE (FOURTH DEPT). ​

The Fourth Department, reversing County Court, determined the persistent felony offender statement was inadequate because it did not clearly describe the periods of defendant’s incarceration, which tolls the ten-year cut off for consideration of prior felonies. The matter was remitted for the submission of a valid statement and resentencing:

The sentences upon the predicate violent felony convictions “must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted” (§ 70.04 [1] [b] [iv]). However, “[i]n calculating the ten year period . . . , any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration” (§ 70.04 [1] [b] [v]). It is undisputed that, here, the sentences for defendant’s two prior violent felony convictions were imposed more than 10 years before defendant committed the subject violent felony offense (see §§ 70.04 [1] [b]; 70.08 [1] [a], [b]). Thus, the prior violent felony convictions may be considered predicate violent felony convictions only in accordance with the tolling provision of section 70.04 (1) (b) (v) based upon defendant’s subsequent periods of incarceration.

Because the tolling provision of Penal Law § 70.04 (1) (b) (v) is implicated, the persistent violent felony offender statement filed by the People was required to “set forth the date of commencement and the date of termination as well as the place of imprisonment for each period of incarceration to be used for tolling of the ten year limitation” (CPL 400.15 [2]; see CPL 400.16 [1], [2]). Here, however, the statement filed by the People did not comply with that requirement … . Moreover, contrary to the position taken by the People that the statement substantially complies with CPL 400.15, the absence of the required information deprived defendant of the requisite “reasonable notice and an opportunity to be heard” with respect to the tolling period … . People v Watkins, 2020 NY Slip Op 04265, Fourth Dept 7-24-20

 

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