Monday, September 21, 2009

Penal Law 70.10(1)(c): clarity takes a holiday

To qualify for an enhanced sentence as a persistent felony offender, a defendant must have been previously convicted of two or more felonies. Determining whether one has been previously convicted of two or more felonies sounds simple, right? Snatching obtuseness from the jaws of clarity, the Legislature has given us Penal Law 70.10(1)(c), which provides that:

"For the purpose of determining whether a person has two or more previous felony convictions, two or more convictions of crimes that were committed prior to the time the defendant was imprisoned under sentence for any of such convictions shall be deemed only one conviction."

This section presents a number of questions. The first might be, who wrote this sentence, so seriously lacking in punctuation to guide the reader? Another might be, what does the phrase "any of such convictions" relate to? Try reading the section with the emphasis on that phrase. Does that make the section more clear? No, it does not. Now try reading the section with a French accent. That's even worse.

Perhaps more useful in divining the Legislature's intent are some clarifying examples offered by Alan Rosenthal, Co-Director of Justice Strategies at the Center for Community Alternatives in Syracuse:

Example #1:

On the first day of each year starting on January 1, 2000 and continuing through 2004 (5 crimes) an extremely punctual defendant commits a crime. If he is sentenced and goes to prison on the 2000 crime before the 2001 crime is committed and is sentenced for the 2001 crime before he commits the 2002 crime and so on he will end up with 5 convictions. (Presumably by crime #5 the crime he's committing is either escape, possession of prison contraband, or some other in-custody offense).

Example #2:

Using the same 5 dates for the crimes committed but different sentencing and imprisonment dates you come up with a different number of convictions. Suppose after committing the crimes in 2000, 2001, 2002 and 2003 he doesn't get prosecuted on any of them until 2003. He gets convicted of the 2000 crime in 2004, the 2001 crime in 20005, the 2002 crime in 2006, and the 2003 crime in 2007. He would be deemed to have only one conviction. If he then commits a new crime in 2008 and gets convicted in 2008 he only has one prior conviction for purposes of the statute and counting the number of predicates.

So the second defendant, while sinning just as prolifically as the first, is subject to lesser penalties as a consequence of lackadaisical prosecution? This raises some other questions, such as (1) what message was the Legislature trying to send here? and (2) is it sound public policy for a punitive sanction to be determined not by the actions of a defendant but rather by the actions, or inaction, of a third party?

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