Some Thoughts on Felony Sentencing in New York

Jill Paperno

Second Assistant Monroe County Public Defender


Plea and sentence negotiations are a part of our practice that requires social skills, strategy, and yes, a knowledge of the sentencing laws. If a client is facing a much higher sentence, maybe the deal on the table is a good one. But if they're not, it may not be. Very often DAs and judges are not familiar with the details of the sentencing laws and might, out of lack of familiarity, misstate the sentence exposure your client faces. We have to know what the possible sentences are in a case before we walk into the conference. But unfortunately, the sentencing statutes are dense and poorly written. But we still have to know them. There are some common errors defense attorneys make that I'd like to address broadly. Remember - it's always important to read the applicable statutes - after all these years all the experienced attorneys I know review them time and time again. And for some of these statutes, the practice commentaries and cases interpreting the statutes are a must-read as well.


Persistent offender statutes

Prosecutors often enjoy raising the specter of persistent felony sentencing if a defendant does not accept a lousy offer.


There are two kinds of persistent felony sentencing statutes - the persistent felony offender statute and the persistent violent felony offender statute. Each one elevates the minimum sentence a defendant may receive, and makes the maximum sentence life. But there are important distinctions between the two.


Persistent violent felony offender


Penal Law Section 70.08 addresses persistent violent felony offender sentencing. The procedure a court must use in determining whether a defendant should be subjected to such sentencing is contained in CPL 400.16. Generally speaking, a person who has been convicted of a violent felony offense or predatory sex offense and has two prior violent felonies for two separate convictions within a ten year period (not counting time spent incarcerated) is a persistent violent felony offender. If a court makes the determination a person is a PVFO then persistent violent felony offender sentencing is mandatory. The second predicate offense must be committed after the first felony offense for a person to be found to be a PVFO. It is NOT required that a person serve two prior state sentences. Each prior violent felony must be within ten years of the current felony, but the ten years is tolled during periods of incarceration. (See, e.g. People v. Ogarra, 757 NYS2d 683.)


So some of the important things to know about PVFO sentencing are that the crimes must be sequential, the sentence is mandatory if applicable, and there is a ten year period within which the two prior violent felonies must have occurred.


Persistent felony offender


Penal Law Section 70.10 addresses persistent felony offender sentencing. Notably, that statute does not require that the two prior felonies occur within a specified period. It does, however, require that the felonies be sequential and that the defendant served a state prison bid on at least two prior felony convictions (by requiring the sentence for each conviction be in excess of one year or death under Penal Law 70.10(1)(b)(i)) (Death? Then isn't persistent a bit of overkill, if you'll pardon the pun?) Persistent felony offender sentencing is within the discretion of the judge, and may be based on factors other than simply prior sentences. Therefore, it has been challenged as unconstitutional (but found constitutional by the NYCA and Second Circuit) and may yet be reviewed by the Supreme Court (the cert. petition in People v Battles is pending) The procedure used to determine whether a defendant is a persistent felony offender is contained in CPL Section 400.20.


With any kind of predicate sentence, out of state charges may be considered to be felonies, but you actually have to analyze whether they constitute felonies under New York law, first by looking at the face of the statute, and sometimes by looking at the accusatory. (For example, in some states, breaking into a car may be considered a burglary. Not a felony in New York even if a person did state time in the other state, and even if it was your car. Thus, not a predicate felony for sentencing purposes.) See 70.04(1)(b)(i) and 70.06(1)(b)(i) for the requirements for out of state felonies, as well as cases interpreting that statute.


So some of the most important things to know about PFO sentencing are that the crimes must be sequential, the sentence is NOT mandatory if applicable, there is no statutory period in which the two felonies must have occurred, but each must have resulted in a sentence of state prison (70.10[1][b][i]).


So if the judge or prosecutor is threatening persistent sentencing, make sure you have reviewed your client's record and determined whether it supports that sentence.


Mandatory consecutive


Penal Law Section 70.25 governs when sentences must be concurrent or consecutive. Importantly, although a defendant may be a second felony offender, that does not automatically mean that s/he is required to serve consecutive time. The specific circumstances that require consecutive time are contained within the statute. They include when a person is sentenced as a predicate or persistent felony offender (but do not apply to all predicates/persistents - read the statute) and are on parole (which is described as an "undischarged sentence of imprisonment imposed prior to the date on which the present crime was committed"), defendants charged with escape, bail jumping, VFOs while released on pending felonies, etc.


Prior violent felonies


Keep in mind that certain E felonies charged as attempts to commit D felonies may not be prior violent felonies. See Penal Law Section 70.02(d).