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Defendant Contends Prior Conviction Should Not be Held Against Him


On March 21, 2002, a defendant was sentenced to two years of probation in Michigan for attempted home invasion in the first degree. On August 22, 2003, the same man was charged in the Bronx with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance (drug possession) in the third and seventh degrees. On October 22, 2003, the man entered a plea of guilty to criminal sale of a controlled substance in the third degree.

He was advised by the judge that if he participated in a drug rehabilitation program at a supervised treatment accountability for safer communities facility, that he would be allowed to withdraw his guilty plea. He would then be sentenced as a misdemeanor and able to perform time served. However, if he did not comply with the agreement, he would be sentenced to four and one half to nine years confinement.

On December 4, 2003, he was released to enter the drug program. One week later the treatment center reported that he had failed to complete the program successfully and had stopped coming after the first week. He was arrested again, and appeared on August 4, 2005 when he was picked up on the warrant following being charged in Michigan under an assumed name for assault with intent to murder, assault with intent to do great bodily harm but not murder, and assault with a dangerous weapon. The Michigan court allowed the defendant to plead nolo contender to the assault with intent to murder. He was also allowed to plead nolo to the dangerous weapons charge. He was sentenced to an indeterminate term in prison from two to fifteen years, plus two years for the felony firearms charge to run consecutively.

On October 15, 2005 he was sent back to the Bronx on extradition. At that hearing, the prosecutor stated that because his breaking and entering charge in Michigan was so similar to the New York burglary charge that he should be arraigned on a predicate felony information. The predicate felony being referred to was the attempted home invasion in Michigan. He was told that if he wanted to challenge any of the allegations against him that he would be allowed to do so. However, if he did not challenge the constitutionality of his charges at that time, that he would be waiving his right to appeal at a later date. He stated that he was not going to issue a challenge. He was sentenced as a second felony offender. On March 19, 2010, the defendant filed a combined motion with the court to set aside his sentence and petitioned for a resentencing hearing. The motion was denied.

The defendant put forth the contention that because his first offense was in Michigan and not in New York that it should not be held against him in order to charge him as a second felony offender. The court determined that if the crime that he had committed in Michigan had not been equal to a felony crime in New York, then the defendant would have been correct. However, the crime in Michigan and the similar crime in New York are both felony offenses. However, in this case the crime that he was actually convicted of after the plea bargain, was attempted home invasion in the first degree which is not a felony conviction.

The defendant contends that since this first conviction was not adjudicated as a felony that he should not have been sentenced on the grounds that it was. The Superior Court agreed and granted the defendant’s motion to set aside the sentence for that charge. The Superior Court determined that his second felony offender adjudication was unlawful.

At Stephen Bilkis & Associates, drug crime lawyers, are available in one of several offices located throughout New York and the Metropolitan area. Our criminal Attorneys will guide you in the event that you have to appear in court.

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