Predicate Felonies (as described in NY Penal Law Chapter 70)

Posted By Galluzzo & Arnone LLP || 30-Nov-2012

A conviction for a New York state felony is very serious and can involve lengthy sentences of probation or even incarceration. However, what many people do not realize is that a felony conviction can also greatly increase the possible sentence a person can receive on a subsequent felony conviction, especially so when the prior conviction is a predicate felony conviction.

Second felony offenders – or people with predicate felony convictions being sentenced on a new felony – are most commonly classified as either second violent felony offenders, regular (non-violent) felony offenders, or second felony drug offenders. Some other classifications for “predicate felons” include second felony child sexual assault offenders, persistent felony offenders, and persistent violent felony offenders.

The definition of predicate violent felony conviction is explained in Penal Law Section 70.04. It explains: .

	S
	70.04 Sentence of imprisonment for second violent felony offender. 1. Definition
	 of second violent felony offender. (a) A second violent felony offender
	 is a person who stands convicted of a violent felony offense as defined
	 in subdivision one of section 70.02 after having previously been subjected
	 to a predicate violent felony conviction as defined in paragraph (b) of
	 this subdivision. (b) For the purpose of determining whether a prior conviction
	 is a predicate violent felony conviction the following criteria shall
	 apply: (i) The conviction must have been in this state of a class A felony
	 (other than one defined in article two hundred twenty) or of a violent
	 felony offense as defined in subdivision one of section 70.02, or of an
	 offense defined by the penal law in effect prior to September first, nineteen
	 hundred sixty-seven, which includes all of the essential elements of any
	 such felony, or in any other jurisdiction of an offense which includes
	 all of the essential elements of any such felony for which a sentence
	 to a term of imprisonment in excess of one year or a sentence of death
	 was authorized and is authorized in this state irrespective of whether
	 such sentence was imposed; (ii) Sentence upon such prior conviction must
	 have been imposed before commission of the present felony; (iii) Suspended
	 sentence, suspended execution of sentence, a sentence of probation, a
	 sentence of conditional discharge or of unconditional discharge, and a
	 sentence of certification to the care and custody of the division of substance
	 abuse services, shall be deemed to be a sentence; (iv) Except as provided
	 in subparagraph (v) of this paragraph, sentence must have been imposed
	 not more than ten years before commission of the felony of which the defendant
	 presently stands convicted; (v) In calculating the ten year period under
	 subparagraph (iv), 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; (vi) An offense for which the defendant
	 has been pardoned on the ground of innocence shall not be deemed a predicate
	 violent felony conviction. * 2. Authorized sentence. When the court has
	 found, pursuant to the provisions of the criminal procedure law, that
	 a person is a second violent felony offender the court must impose a determinate
	 sentence of imprisonment which shall be in whole or half years. Except
	 where sentence is imposed in accordance with the provisions of section
	 70.10, the term of such sentence must be in accordance with the provisions
	 of subdivision three of this section. * NB Effective September 1, 2013
	 * 2. Authorized sentence. When the court has found, pursuant to the provisions
	 of the criminal procedure law, that a person is a second violent felony
	 offender the court must impose an indeterminate sentence of imprisonment.
	 Except where sentence is imposed in accordance with the provisions of
	 section 70.10, the maximum term of such sentence must be in accordance
	 with the provisions of subdivision three of this section and the minimum
	 period of imprisonment under such sentence must be in accordance with
	 subdivision four of this section. * NB Effective September 1, 2013 * 3.
	 Term of sentence. The term of a determinate sentence for a second violent
	 felony offender must be fixed by the court as follows: (a) For a class
	 B felony, the term must be at least ten years and must not exceed twenty-five
	 years; (b) For a class C felony, the term must be at least seven years
	 and must not exceed fifteen years; and (c) For a class D felony, the term
	 must be at least five years and must not exceed seven years. (d) For a
	 class E felony, the term must be at least three years and must not exceed
	 four years. * NB Effective September 1, 2013 * 3. Maximum term of sentence.
	 The maximum term of an indeterminate sentence for a second violent felony
	 offender must be fixed by the court as follows: (a) For a class B felony,
	 the term must be at least twelve years and must not exceed twenty-five
	 years; (b) For a class C felony, the term must be at least eight years
	 and must not exceed fifteen years; and (c) For a class D felony, the term
	 must be at least five years and must not exceed seven years. (d) For a
	 class E felony, the term must be at least four years. * NB Effective September
	 1, 2013 * 4. Minimum period of imprisonment. The minimum period of imprisonment
	 under an indeterminate sentence for a second violent felony offender must
	 be fixed by the court at one-half of the maximum term imposed and must
	 be specified in the sentence. * NB Effective September 1, 2013

Similarly, the definition of Second Felony Offender comes from Penal Law Section 70.06. It explains:

	S
	70.06 Sentence of imprisonment for second felony offender. 1. Definition
	 of second felony offender. (a) A second felony offender is a person, other
	 than a second violent felony offender as defined in section 70.04, who
	 stands convicted of a felony defined in this chapter, other than a class
	 A-I felony, after having previously been subjected to one or more predicate
	 felony convictions as defined in paragraph (b) of this subdivision. (b)
	 For the purpose of determining whether a prior conviction is a predicate
	 felony conviction the following criteria shall apply: (i) The conviction
	 must have been in this state of a felony, or in any other jurisdiction
	 of an offense for which a sentence to a term of imprisonment in excess
	 of one year or a sentence of death was authorized and is authorized in
	 this state irrespective of whether such sentence was imposed; (ii) Sentence
	 upon such prior conviction must have been imposed before commission of
	 the present felony; (iii) Suspended sentence, suspended execution of sentence,
	 a sentence of probation, a sentence of conditional discharge or of unconditional
	 discharge, and a sentence of certification to the care and custody of
	 the division of substance abuse services, shall be deemed to be a sentence;
	 (iv) Except as provided in subparagraph (v) of this paragraph, sentence
	 must have been imposed not more than ten years before commission of the
	 felony of which the defendant presently stands convicted; (v) In calculating
	 the ten year period under subparagraph (iv), 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; (vi) An
	 offense for which the defendant has been pardoned on the ground of innocence
	 shall not be deemed a predicate felony conviction. * 2. Authorized sentence.
	 Except as provided in subdivision five or six of this section, when the
	 court has found, pursuant to the provisions of the criminal procedure
	 law, that a person is a second felony offender the court must impose an
	 indeterminate sentence of imprisonment. The maximum term of such sentence
	 must be in accordance with the provisions of subdivision three of this
	 section and the minimum period of imprisonment under such sentence must
	 be in accordance with subdivision four of this section. * NB Effective
	 September 1, 2013 * 2. Authorized sentence. Except as provided in subdivision
	 five of this section, or as provided in subdivision five of section 70.80
	 of this article, when the court has found, pursuant to the provisions
	 of the criminal procedure law, that a person is a second felony offender
	 the court must impose an indeterminate sentence of imprisonment. The maximum
	 term of such sentence must be in accordance with the provisions of subdivision
	 three of this section and the minimum period of imprisonment under such
	 sentence must be in accordance with subdivision four of this section.
	 * NB Effective September 1, 2013 * 3. Maximum term of sentence. Except
	 as provided in subdivision five or six of this section, or as provided
	 in subdivision five of section 70.80 of this article, the maximum term
	 of an indeterminate sentence for a second felony offender must be fixed
	 by the court as follows: (a) For a class A-II felony, the term must be
	 life imprisonment; (b) For a class B felony, the term must be at least
	 nine years and must not exceed twenty-five years; (c) For a class C felony,
	 the term must be at least six years and must not exceed fifteen years;
	 (d) For a class D felony, the term must be at least four years and must
	 not exceed seven years; and (e) For a class E felony, the term must be
	 at least three years and must not exceed four years; provided, however,
	 that where the sentence is for the class E felony offense specified in
	 section 240.32 of this chapter, the maximum term must be at least three
	 years and must not exceed five years. * NB Effective until September 1,
	 2013 * 3. Maximum term of sentence. Except as provided in subdivision
	 five of this section, or as provided in subdivision five of section 70.80
	 of this article, the maximum term of an indeterminate sentence for a second
	 felony offender must be fixed by the court as follows: (a) For a class
	 A-II felony, the term must be life imprisonment; (b) For a class B felony,
	 the term must be at least nine years and must not exceed twenty-five years;
	 (c) For a class C felony, the term must be at least six years and must
	 not exceed fifteen years; (d) For a class D felony, the term must be at
	 least four years and must not exceed seven years; and (e) For a class
	 E felony, the term must be at least three years and must not exceed four
	 years. * NB Effective September 1, 2013 4. Minimum period of imprisonment.
	 (a) The minimum period of imprisonment for a second felony offender convicted
	 of a class A-II felony must be fixed by the court at no less than six
	 years and not to exceed twelve and one-half years and must be specified
	 in the sentence, except that for the class A-II felony of predatory sexual
	 assault as defined in section
	130.95 of this chapter or the class A-II felony of predatory sexual assault against
	 a child as defined in section
	130.96 of this chapter, such minimum period shall be not less than ten years
	 nor more than twenty-five years. (b) Except as provided in paragraph (a),
	 the minimum period of imprisonment under an indeterminate sentence for
	 a second felony offender must be fixed by the court at one-half of the
	 maximum term imposed and must be specified in the sentence. * 6. Determinate
	 sentence. When the court has found, pursuant to the provisions of the
	 criminal procedure law, that a person is a second felony offender and
	 the sentence to be imposed on such person is for a violent felony offense,
	 as defined in subdivision one of section 70.02, the court must impose
	 a determinate sentence of imprisonment the term of which must be fixed
	 by the court as follows: (a) For a class B violent felony offense, the
	 term must be at least eight years and must not exceed twenty-five years;
	 (b) For a class C violent felony offense, the term must be at least five
	 years and must not exceed fifteen years; (c) For a class D violent felony
	 offense, the term must be at least three years and must not exceed seven
	 years; and (d) For a class E violent felony offense, the term must be
	 at least two years and must not exceed four years. * NB Repealed September
	 1, 2013 * 7. Notwithstanding any other provision of law, in the case of
	 a person sentenced for a specified offense or offenses as defined in subdivision
	 five of section 410.91 of the criminal procedure law, who stands convicted
	 of no other felony offense, who has not previously been convicted of either
	 a violent felony offense as defined in section 70.02 of this article,
	 a class A felony offense or a class B felony offense, and is not under
	 the jurisdiction of or awaiting delivery to the department of corrections
	 and community supervision, the court may direct that such sentence be
	 executed as a parole supervision sentence as defined in and pursuant to
	 the procedures prescribed in section 410.91 of the criminal procedure
	 law. * NB Repealed September 1, 2013

In short, a person becomes a Second Felony Offender when he is convicted of a felony and has been previously convicted of a felony in the prior ten years (and one becomes a Second Violent Felony Offender by being convicted of a violent felony offense after having been convicted of a previous violent felony offense in the last ten years). In calculating that "ten year period," one must exclude any time that the person was incarcerated between the time of his arrest on the new felony conviction and the time of his sentencing on the prior felony. Thus, if a person were say convicted of a felony in 1997 and subsequently spent ten years in jail, he would be a second felony offender (and the 1997 conviction would be a predicate felony conviction) if convicted of another felony in 2012, because those ten years of incarceration between 1997 and 2012 would be excluded from the calculation of time, leaving that period as five years for purposes of this adjudication.

Once one becomes eligible for sentencing for a second felony offense (or second violent felony offense or second drug felony offense), the potential sentences for that person increase significantly. Though not a perfect or exact summary, a sentencing chart is available here.

In short, if you or a loved one are facing a possible conviction for a second felony offense, you should strongly consider retaining an experienced criminal defense attorney, as the stakes – and possible sentences – are especially high.

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