Senate Bill S5106

                                BILL NUMBER:S5106

TITLE OF BILL:  An act to amend the penal law, in relation to criteria
for determining prior felony offender status

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Criminal Law and Procedure.

This measure would amend the Penal Law to modify the criteria for
determining whether a defendant qualifies as a second felony offender
(PL § 70.06), second violent felony offender (PL § 70.04) and
persistent felony offender (PL § 70.10). Changes in these statutes
will necessarily apply by reference to a defendant's qualification to
be considered a second child sexual assault felony offender (PL
70.07) and persistent violent felony offender (PL § 70.08).

Under current law, a defendant's predicate status turns on whether the
sentence for the prior felony was imposed before commission of the
present felony (PL §§ 70.04(1)(b)(ii); 70.06(1)(b)(ii));
70.10(1)(b)(ii)). Moreover, except for a persistent felony offender,
the commission of the present felony must occur within ten years of
the sentence on the earlier felony, not counting periods of
incarceration (PL §§ 70.04(1)(b)(iv); 70.06(1)(b)(iv)). These
requirements serve a fundamental purpose of enhanced sentencing to
impose more severe punishment on persons who continue to commit
              

serious crimes relatively soon after having been subjected to
punishment for other serious criminal conduct (People v Morse, 62 NY2d
205, 221(1984)). It is a defendant's disregard for the "chastening
effect of sentence on the prior conviction" that underlies the policy
of New York's multiple offender laws (People v Morse, supra, 62 NY2d
205 at 219). Thus, a critical calculation for determining predicate
felony status is the sentencing date of the prior conviction. In most
cases, this makes perfect sense because it is punishment that triggers
the "chastening effect."

Recent court opinions, however, illustrate the potential for
gamesmanship that the current statute engenders. In People v Acevedo,
(17 NY3d 297 (2011)), a defendant sentenced as a second felony drug
offender with a prior violent felony, successfully attacked his
earlier violent felony sentence on the ground that the sentencing
court in the earlier case failed to add a period of post release
supervision to his prison term (see People v Sparber, 10 NY3d 457
(2008)). Applying Sparber, the original sentencing court vacated
defendant's sentence and resentenced him to the same prison term and
no additional period of post release supervision (see PL § 70.85).
Once resentenced, defendant moved to vacate the drug felony sentence
arguing that he should now be considered a first felony drug offender
because the sentence on the violent felony conviction no longer
preceded the commission of the drug offense. The Court of Appeals
rejected the defendant's argument, but only because defendant's motion
for resentence was a tactical measure to avoid predicate status on the
drug felony. By contrast, under similar circumstances, the Appellate
Division, First Department, agreed with a defendant who claimed he
should be sentenced as a first felony offender once resentenced on an
earlier conviction because post release supervision had not been made
part of the original sentence (People v Butler, 88 AD3d 470 (1' Dept


2011)). The Butler court distinguished Acevedo because the
resentencing proceeding on the first felony case was not done as a
tactical measure, but had been initiated by the New York State
Division of Parole pursuant Correction Law § 601d (88 AD3d at 472;
c.f., People v Naughton, 93 AD2d 809 (2d Dept 2012) lv denied, 19 NY3d
865 (2012); People v Boyer, 91 AD3d 1183 (3d Dept 2012) lv granted, 19
AD3d 1024 (2012)).

We believe that such technical applications of New York's recidivist
statutes do not further the principle of enhancing punishment of
defendants who reoffend relatively soon after being convicted and
sentenced. When the conviction itself is not undermined, and the
defendant is punished before commission of a new offense, subsequent
resentences do not diminish the "chastening effect" of the earlier
imposition of punishment on the conviction. It also is unwarranted to
reset the ten year look back simply because a court resentences a
defendant as a result of an initial sentencing error. It is only the
recidivist who benefits by the current rule, and a defendant who
remains conviction free after the original sentence should not be
compelled to choose between contesting an illegal sentence or
extending the ten year look-back period.

This measure provides that where a defendant has been resentenced
following either a motion to set aside a sentence or an appeal of the
sentence, and where the underlying conviction has not been disturbed,
for purposes of determining defendant's predicate status, the sentence
date shall be considered the initial sentence following the
conviction.

This measure would take effect immediately, and would apply to all
criminal actions commenced on or after such effective date.

Legislative History:

None. New proposal.