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Court Determines if Defendant was Unlawfully Adjudicated a Persistent VFO.

In this case, the Nassau Criminal Lawyer said that, defendant was convicted of robbery in the first degree, a class B violent felony under Penal Law § 70.02 (1) (a). At his sentence, the People filed information alleging that defendant was a persistent VFO having been convicted of two previous violent felonies. The People alleged that on January 7, 1985, defendant was convicted of criminal possession of a weapon in the third degree in Nassau County and sentenced to a term of incarceration of 2½ years. The People also alleged that on July 18, 1986, defendant was convicted of burglary in the second degree in Nassau County and sentenced to an indeterminate term of incarceration with a minimum of 4 years and a maximum of 8 years. The People further asserted that the following time periods during which defendant was incarcerated were tolled from the 10-year limitation: January 18, 1985 to April 5, 1990, and December 14, 1991 to June 9, 1994.

A New York Criminal Lawyer said that, the court adjudicated defendant a persistent VFO and sentenced him to an indeterminate term of incarceration of 24 years to life, in accordance with the statutory guidelines set forth in Penal Law § 70.08.

Defendant now moves to set aside his sentence pursuant to CPL 440.20 on the grounds that he was unlawfully adjudicated a persistent VFO. In his motion, defendant claims that he was unlawfully adjudicated a persistent VFO. Defendant argues that his 1985 conviction cannot serve as a predicate in conjunction with his 1986 conviction because the sentence on his earlier case was not imposed until after the commission of the felony on the latter case. A New York Criminal Lawyer said to support his claim, defendant attached to his motion the commitment orders submitted by the Clerk of Nassau County to the State Department of Correctional Services on both the 1985 and 1986 convictions. Indeed, the orders confirm that defendant had been sentenced on his 1985 gun crime conviction on January 7, 1985-15 months after September 8, 1983, the date he committed the gun crime which led to his subsequent burglary conviction in 1986. Furthermore, the second violent felony offender statement submitted by the Nassau County District Attorney’s office upon defendant’s sentencing in 1986 establishes that the People did not rely upon defendant’s 1985 conviction to enhance his punishment. Instead, in 1986, the People relied upon defendant’s 1981 conviction of robbery in the first degree in Bronx County to establish that defendant was a second VFO.

The issue in this case is whether defendant was unlawfully adjudicated a persistent VFO.

The Court in deciding the case cited the provisions of Penal Law § 70.08 (1) (a) defines a persistent VFO as a person who stands convicted of a violent felony offense as defined in Penal Law § 70.02 (1) after having previously been subjected to two or more predicate violent felony convictions as defined in Penal Law § 70.04 (1) (b). A New York Drug Possession Lawyer said in order to determine whether a prior conviction may serve as a predicate violent felony conviction under Penal Law § 70.04 (1) (b), the conviction must be of a class A felony or a violent felony offense as defined by Penal Law § 70.02, and the sentence upon the prior conviction must have been imposed before the commission of the present offense. Additionally, the sentence on the prior conviction “must have been imposed not more than 10 years before commission of the felony of which the defendant presently stands convicted,” excluding any period of time during which defendant is incarcerated for any reason between the time of the commission of the previous felony and the time of the commission of the present felony. Thus, the 10-year period is extended by the “period or periods equal to the time served under such incarceration”.

The Court said that, in order for a defendant to be adjudicated a persistent VFO pursuant to Penal Law § 70.08, it is well settled that the sentence on the first violent felony conviction must have preceded the commission of the second violent felony conviction. The Legislature did not intend the persistent violent felony offender law to apply, unless each of the two or more predicate violent felony convictions other than the first was for a felony which occurred after sentence had been imposed for the conviction which preceded it. Where defendant was sentenced for his first violent felony offense after he committed his second violent felony offense, his prior convictions do not constitute two or more predicate convictions under Penal Law § 70.08. In this case, defendant has clearly established that he was not sentenced on his first violent felony offense for criminal possession of a weapon in the third degree until after the commission of his second violent felony offense of burglary in the second degree. Accordingly, defendant was improperly adjudicated a persistent VFO.

In their papers in opposition to defendant’s motion, the People concede that defendant’s 1986 conviction cannot serve as one of the predicates for persistent VFO status along with the 1985 conviction since it fails to meet the sequentiality requirement set forth in Penal Law §§ 70.04 and 70.08. A New York Sex Crimes Lawyer said regardless of whether defendant is still eligible for enhanced punishment as a persistent VFO, he must be produced before this court and arraigned upon a non-defective predicate felony statement. Under CPL 400.16, in order to determine whether a defendant is a persistent VFO, the People are required to file a statement setting forth the date and place of each alleged predicate violent felony conviction. Additionally, the statement must also set forth the date of commencement and termination as well as the place of imprisonment for each period of incarceration to be used for the tolling of the 10-year limitation. Upon receipt of the statement, defendant may controvert any allegation made within the statement.

Relying on People v Bouyea, the People argue that it would be “futile and pointless” to have defendant reappear before this court for the filing of a non-defective predicate felony statement and resentencing since defendant had notice of all of his prior convictions. A New York Sex Crimes Lawyer said in Bouyea, the Court of Appeals held that the statutory purpose of requiring a predicate statement is to apprise the court of the prior convictions and provide the defendant with reasonable notice and an opportunity to be heard in defense against the allegations. In that case, the Court held that the People’s failure to file a predicate statement was harmless and that it was not necessary to remand the case for filing and resentencing because the defendant had “admitted the existence, nature and time of his prior felony conviction, as well as the length and location of the prior sentence he served”.

Contrary to the People’s assertions, Bouyea is clearly distinguishable from the instant case. Here, there was no mention of defendant’s 1981 conviction at his sentence since the People did not rely on that conviction to establish defendant’s predicate status. Thus, defendant was clearly not given reasonable notice that the People now intend to rely upon the 1981 conviction, nor was he given an opportunity to be heard in defense against this particular conviction. Unlike the defendant in Bouyea, defendant certainly had not admitted the existence of the 1981 felony conviction or the length and location of the prior sentence he served. Had the 1981 conviction been raised, it is clear from defendant’s reply papers that he would have challenged both the constitutionality of that conviction, as well as the dates and locations of imprisonment relied upon by the People for the tolling of the 10-year limitation.

Accordingly, the matter will be returned to this court’s calendar so that defendant may be arraigned upon a non-defective predicate felony statement. This statement must set forth the prior violent felony convictions that the People rely upon to establish defendant’s status as a persistent VFO, as well as any periods of incarceration which would toll the 10-year limitation. At that time, defendant may raise any challenges he has regarding the constitutionality of the 1981 conviction and the tolling of the 10-year period. With respect to the People’s claim that defendant cannot challenge the constitutionality of the 1981 conviction having been previously adjudicated a second felony offender, this issue will be litigated and resolved upon defendant’s re-arraignment. Should defendant controvert the People’s allegations with respect to applicable tolling periods, the People are required to provide certificates from the various correctional facilities where defendant was imprisoned, setting forth the dates and terms of the sentences, length of time imprisoned and dates of discharge.

Accordingly, the Court held that, defendant’s motion to set aside his sentence pursuant to CPL 440.20 is denied at this time since it appears he may still be adjudicated a persistent VFO in accordance with Penal Law § 70.08. However, in the event defendant successfully challenges any part of the persistent felony statement filed by the People, he will be resentenced as a second violent felony offender.

In order for a defendant to be adjudicated a persistent VFO pursuant to Penal Law § 70.08, it is well settled that the sentence on the first violent felony conviction must have preceded the commission of the second violent felony conviction. If you felt that there has been a violation of this rule regarding your case, seek the help of a Nassau Arrest Attorney. Nassau Criminal Attorney at Stephen Bilkis and Associates can handle your case and make sure that justice will be served.

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