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Predicate Felons and Second Felony Offenders in NY: How Does a Non-NY Felony Alter Your Status?

Any NY criminal defense attorney experienced in New York criminal law should be able to explain to you that if you are a predicate felon in New York State and charged with a non-controlled substance offense, a second felony conviction will land you in state prison even if your offense is “merely” and “E” Felony. In other words, if you are a predicate felon, as will be explained below, a sentence of state prison is mandatory on felony plea.

Pursuant to New York Penal Law Section 70.06, for one to be deemed a predicate felon or second felony offender, one must have a prior felony conviction in the past ten years. In the event you were incarcerated or on probation, the ten years starts from the completion of your incarceration. This only applies to felonies and not prior misdemeanors. Therefore, while a judge or prosecutor might take the prior misdemeanors into consideration when arranging for a disposition or determining a sentence, from a technical standpoint, the prior misdemeanors will not impact your sentence on a new felony (from a practical standpoint it often does).

An issue that comes up in the realm of the predicate felon statute is whether or not the first felony offense must be a felony in New York State. Instead of New York, what if your conviction was from a state such as Florida, Connecticut or Pennsylvania?

According to New York Penal Law Section 70.06(1)(a)(i): “the [previous felony] conviction must have been in [NY] 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.”

Put into other terms, merely because a crime is called a felony in Arizona does not meant that the crime would be a felony here. Was a term of imprisonment in excess of one year possible (not necessarily imposed) and are the elements of the crime felonious here? The Arizona conviction on your record may be called Burglary, but the elements of that crime in Arizona and the potential sentence may be similar to a misdemeanor in New York.

Obviously, it is imperative to ascertain whether your prior conviction is a felony in New York State so that you don’t end up in prison when you never should have gone in the first place. To put this in perspective, as addressed above with the “E” felony, the lowest of all felonies, if you are not a predicate felon jail is not mandatory. If you are a predicate felon, then a minimum term of incarceration of 1.5 to 3 years in state prison is required and the court must adjudicate you a “Predicate Felon.” Certainly, going to prison without answering this question is unacceptable.

Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. Follow Crotty Saland PC on the NewYorkCriminalLawyerBlog or on Twitter at DefenseLawyerNY.

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