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Proposed New York PL § 30.10, at 285 (1964

A Queens Criminal Lawyer said that, the defendant, on Probation in connection with a prior Assault conviction, attacked an emergency medical technician, in a park in the Bronx. Defendant stabbed the victim several times in the chest, inflicting two puncture holes in his shirt and a 1-1 1/2 inch slash of his bulletproof vest. It was the vest which saved his life. Defendant was indicted on charges of Attempted Murder, Assault, and related charges. On April 8, 1998, following a jury trial, he was acquitted of Attempted Murder and convicted of Attempted Assault in the Second Degree.

A Queens Drug Crime Lawyer said that, the Court served notice (“Notice”) upon the parties of its intention to conduct a hearing to determine whether defendant should be adjudicated a persistent felony offender, and if so, whether a persistent felony offender sentence should be imposed. The hearing commenced on June 4, 1998 and continued for six days, concluding on June 25, 1998. The Criminal Court adjudicated defendant a persistent felony offender and sentenced him to a term of 15 years to life. This opinion sets forth the bases for said determination and sentence.

The issue in this case is whether the court erred in Court adjudicating defendant a as persistent felony offender and sentencing him to a term of 15 years to life.

The principle of imposing enhanced sentences upon repeat offenders is not new to the law. New York State was the first in the country to enact such legislation, to wit, Chapter 30 of the Laws of 1796. While statutory provisions vary from state to state, the laws of virtually all have provisions which either mandate or permit an increased sentence based upon a prior conviction or convictions. Approximately one half of the states authorize life sentences upon third or fourth convictions. The New York persistent felony offender law addresses two categories of such offenders: (1) one convicted, within 10 years, of three violent felonies, and (2) a defendant convicted of three non violent felonies, or a combination of violent and non violent felonies, provided all three are not violent.

A discretionary persistent felony hearing progresses in two stages. First, the People must prove, beyond a reasonable doubt, by evidence legally admissible at trial, that the defendant, presently convicted of a felony, has been previously convicted of two or more felonies. The People need not prove that a previous conviction was constitutionally obtained, however, since that burden lies with the defendant. To carry his burden, the defendant must present substantial evidence to contradict the presumption of regularity accorded to previous felony convictions.

In the second stage, the court must determine whether the “history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest.” In exercising its discretion, the court may consider “any relevant evidence, not legally privileged, regardless of admissibility under the exclusionary rules of evidence, and the standard of proof with respect to such matters shall be by a preponderance of the evidence.”

The defendant, however, challenged the 1980 California Burglary conviction contending: (1) the California drug crime although a felony in California, did not constitute a felony under New York law, (2) the allocution at the time of defendant’s plea was inadequate, and (3) no probation report was prepared or provided. Defendant’s arguments are without merit.

Counsel argued that unlike the New York. Burglary statute that requires a trespass, the California Burglary provision, requires only a simple intent to enter a building or an enclosure. Defense counsel thus argued: “For that reason, it is incongruent with a New York Burglary conviction or any other New York felony and consequently cannot serve as a basis for a sentence enhancement in New York.” There is no need to engage in an examination or comparison of the constituent elements of the two burglary statutes because PL § 70.10 does not require that a drug crime in another jurisdiction be a felony under New York law. The statute requires only that it be a “crime in any other jurisdiction” for which “a sentence to a term of imprisonment in excess of one year was imposed.”

The court in Morton also adopted defendant’s second argument that former PL § 70.06 violated the constitutional provisions vesting the legislative power of the State of New York in the Senate and the Assembly. This power includes the responsibility for prescribing proper punishment for the various crimes, and such power cannot be delegated to the legislative body of another State. Accordingly, the Third Department in Morton held that Section 70 .06 was unconstitutional and thus null and void “insofar as it provides that the extent of punishment for a convicted New York felon is dependent upon the authorized sentence for an offense of which he has previously been convicted in another jurisdiction.”

Section 70.10 was enacted to prescribe a “special sentence for only those who persist in committing serious crimes after repeated exposure to penal sanctions.” Commission Staff Notes on the Proposed New York PL § 30.10, at 285 (1964). Three main features furthered that objective. First, actual imprisonment under the prior sentence was required. See Id. at 284-285. Second, felony convictions were eligible to be counted whether or not they constituted a felony under New York law. See Id. at 285. The alternative–a predicate felony for persistent offender purposes must be a crime that constitutes a felony under New York law–was explicitly considered and rejected at the time of enactment. Third, imposition of these sentence enhancements was to be at the sentencing court’s discretion. “The discretionary feature allows the court to weigh the substance of foreign convictions and consider all of the circumstances. This will provide fairness to the offender to the offender and protection for the public.”

In brief, we believe that the repeat offender scheme is entirely rational. First, persistent offender sentencing is discretionary, while second offender sentencing is mandatory. New York might reasonably have concluded that it was necessary to circumscribe narrowly what constitutes a qualifying crime for purposes of the mandatory sentencing enhancements for second offenders while providing a looser definition of predicate crimes for purposes of the discretionary sentencing enhancements for persistent offenders. Second, predicate felonies for persistent offender status must have resulted in a sentence of imprisonment of more than one year, while predicate crimes for second offender status need not have resulted in imprisonment. This ensures that those deemed persistent offenders based on federal or out-of-state crimes without a New York counterpart have in fact committed serious crimes.

Defense counsel conceded that the rap sheet is a substantially accurate reflection of his “actual criminal history”. The evidence at the hearing before me reveals that this “actual criminal history”, constitutes a thesaurus of criminal behavior spanning over three decades. It covers a wide gamut of criminality involving crimes against property, crimes against individuals, crimes against public order and authority, crimes for economic gain, crimes of violence, and the use and threatened use of weapons. The defendant’s crimes have been directed at strangers and even against his own spouse.

Commencing in 1964, defendant has terrorized and victimized individuals in New York and California. He has compiled a total of 34 arrests in New York, resulting in at least 23 convictions, and 20 arrests in California, resulting in at least 10 convictions. There are only 5 years within this 34 year period of virtually uninterrupted criminal activity during which the defendant has not been incarcerated. In some years, defendant had multiple convictions within the same year. Defendant’s rap sheet, unfurled, extends to over 18 feet.

His crimes of violence have resulted in one death, and, but for a near miracle, almost caused a second. On April 22, 1996, the defendant punched one Raul Rodriguez in the face with his closed fist, causing the victim to fall backward and strike his head on the sidewalk. The victim lapsed into a coma and died a few days later. In the trial before me, Ortiz’s appearance on the stand revealed him a bundle of rage and fury, a time bomb waiting to explode. He admitted he “gets agitated real easily” and once agitated “nothing stops him from doing what he wants to do.”

Defendant’s total disregard for, and abuse of authority, are evidenced by his escape from a New York State narcotics facility in 1970; a history of bench Warrants in Manhattan, Brooklyn, The Bronx; his outstanding violation of probation in California; his parole violation conviction in California; and his vicious armed attack upon EMS technician Kelleher on October 3, 1997, within weeks after being placed on probation after his plea of guilty to Assault Third Degree. Defendant’s use of a knife in his assault upon his victim was not his first experience with knives or weapons. In May, 1996, defendant threatened a store security guard with a pair of scissors. Twenty years earlier, in 1975, he displayed what appeared to be a pistol in the commission of a robbery. His propensity for violence is evidenced by his convictions for Attempted Resisting Arrest, Robbery, Assault, Burglary and two convictions of spouse beating.

At the hearing before me, the defendant was given the opportunity to present evidence in his behalf. He admitted that the criminal record herein described is, in fact, his and that he is responsible for all of the crimes listed. However, he and his attorney urged this Court not to sentence the defendant as a persistent felony offender but rather to impose a minimum sentence, specifically, that authorized upon conviction of Attempted Assault Second Degree. This view overlooks entirely the purpose behind the persistent felony statute, which authorizes the sentencing court to treat defendants more severely if “by repeated criminal acts [they] have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.”

The only witness to testify in behalf of the defendant, besides the defendant himself, was his common-law wife. Although she described the defendant’s relationship with his and her family as “beautiful” and “loving” and testified that he “gets along very well with everybody,” not a single relative, neighbor or friend appeared as a character witness or to offer any kind words about the defendant.

Defendant’s conviction by a jury on April 8, 1998 of Attempted Assault upon the victim represented what appeared to be his fourth felony conviction in New York alone. He was thereafter convicted by me of violation of the terms of Probation imposed upon him a few weeks prior to his assault upon the victim. He has been convicted 31 additional times in two states for a multitude of felonies, misdemeanors, and offenses. His voluminous criminal record includes eight (8) felonies.

Based upon the evidence presented at the hearing, the court finds that defendant’s history of violence, of disdain for lawful authority, of uninterrupted criminal behavior, evinces an individual who poses a real and imminent danger and threat to the lives, safety, and security of residents of every community in which he chooses to circulate. He is an evil, vicious, and violent predator and totally incorrigible. He was a menace to society on October 3, 1997, when he left his home armed with an 18 inch knife, seeking someone to stab. His criminal history demonstrates that he has been a menace to society for many years, and that he remains so. “By his repeated criminal acts” he has overwhelmingly demonstrated that he is “simply incapable of conforming to the norms of society as established by its criminal law.” If he is not stopped, and stopped now, he will take another human life.

The court therefore conclude that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision is necessary to best serve and protect the public interest.

Accordingly, it is my sentence that the defendant be incarcerated for a period of 15 years to life. The court also imposes a concurrent sentence of 1 year, upon defendant’s conviction of violation of probation.

The law is also well established regarding what constitutes an “imposed” sentence “in excess of one year.” If you are involved in a similar situation you will need the help of a Queens Drug Crime Attorney and Queens Criminal Attorney at Stephen Bilkis and Associates in order to properly defend your case.

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