New York Law Review

Tag: Predicate Felony Statement

  • People v. Bouyea, 6 N.Y.3d 91 (2005): Validity of Second Felony Offender Sentencing

    People v. Bouyea, 6 N.Y.3d 91 (2005)

    A defendant can waive the right to receive a predicate felony statement and to challenge predicate felony allegations if information before the sentencing court establishes a prior felony conviction within the statutorily required timeframe.

    Summary

    Defendant Bouyea, incarcerated for rape and robbery, was arrested for possessing a shank. He pleaded guilty to attempted criminal possession of a weapon, agreeing to be sentenced as a second felony offender. The prosecution failed to provide a predicate felony statement at sentencing, but Bouyea waived the statement and declined to contest his prior felonies. The Court of Appeals affirmed the sentence, holding that because the sentencing court had information establishing a prior felony conviction within the statutory timeframe, Bouyea’s waiver was valid.

    Facts

    Defendant was serving a 20-year sentence for first-degree rape and first-degree robbery at Wende Correctional Facility.

    He was arrested for possessing a “shank” (a homemade weapon) while incarcerated.

    Defendant was indicted for promoting prison contraband and criminal possession of a weapon.

    He pleaded guilty to attempted criminal possession of a weapon in the third degree in satisfaction of the indictment and agreed to be sentenced as a second felony offender.

    Procedural History

    Defendant pleaded guilty in the trial court.

    The People failed to submit a predicate felony statement to the sentencing judge as required by CPL 400.21(2).

    Defendant waived receipt of the statement and declined to contest his predicate felonies.

    The trial court sentenced him as a second felony offender.

    The Appellate Division affirmed the sentence.

    The New York Court of Appeals affirmed the Appellate Division’s order.

    Issue(s)

    Whether a defendant’s waiver of the right to receive a predicate felony statement and to controvert its allegations is valid when information before the sentencing court establishes that the defendant was convicted of a predicate felony within the time required by Penal Law § 70.06.

    Holding

    Yes, because information before the sentencing court established that defendant had been convicted of a known and identified felony within the time required by the statute, his waiver of his rights to receive a predicate felony statement and to controvert its allegations was valid.

    Court’s Reasoning

    The Court of Appeals emphasized that to be sentenced as a second felony offender, a defendant must have been convicted of a predicate felony, as defined in Penal Law § 70.06(1)(b)(i), within 10 years of the commission of the present felony, subject to tolling for periods of incarceration, according to Penal Law § 70.06(1)(b)(iv), (v).

    The court reasoned that because the sentencing court had information establishing that Bouyea had a prior felony conviction within the statutory timeframe, his waiver of his rights was valid.

    The court relied on the fact that Bouyea had the opportunity to challenge his prior felony convictions, but he expressly waived that right. The court implicitly determined that the purpose of CPL 400.21(2) and (3)—to ensure the defendant is properly informed and has the opportunity to challenge the predicate felony—was satisfied here because the court independently possessed sufficient information.

    The court concluded, “Because information before the sentencing court established that defendant had been convicted of a known and identified felony within the time required by the statute, his waiver of his rights to receive a predicate felony statement and to controvert its allegations was valid.”

  • People v. Smith, 73 N.Y.2d 961 (1989): Preserving Sentencing Challenges

    73 N.Y.2d 961 (1989)

    A defendant must timely challenge the allegations in a predicate felony statement to preserve the issue of whether a prior out-of-state conviction is equivalent to a New York felony for second felony offender sentencing.

    Summary

    Benjamin Kou Smith appealed his sentence as a second felony offender. The Court of Appeals affirmed the Appellate Division’s order, holding that Smith failed to preserve the argument that his prior federal kidnapping conviction was not equivalent to a New York felony. Smith did not properly controvert the allegations in the predicate felony statement as required by CPL 400.21(3). A concurring opinion argued the police action of transporting the defendant was supported by probable cause. The majority opinion does not address the legality of the transport.

    Facts

    The facts of the underlying crime are not stated in the Court of Appeals decision. The only facts relevant to the decision relate to the sentencing proceeding after Smith’s conviction. The prosecution sought to sentence Smith as a second felony offender based on a prior federal conviction for kidnapping under 18 U.S.C. § 1201. Smith did not properly challenge the predicate felony statement.

    Procedural History

    The defendant was convicted and sentenced as a second felony offender. The Appellate Division affirmed the conviction. The defendant appealed to the New York Court of Appeals, arguing that the sentencing was improper because his prior federal conviction did not qualify as a predicate felony in New York.

    Issue(s)

    Whether the defendant preserved the issue of whether his prior federal kidnapping conviction is equivalent to a felony conviction in New York for purposes of second felony offender sentencing, when he failed to timely controvert the allegations in the predicate felony statement.

    Holding

    No, because the defendant failed to timely raise the issue of whether he was properly sentenced as a second felony offender by not controverting the allegations in the predicate felony statement as required by CPL 400.21(3).

    Court’s Reasoning

    The Court of Appeals held that Smith failed to preserve the issue for review because he did not properly controvert the allegations in the predicate felony statement. CPL 400.21(3) requires a defendant to specify the particular grounds upon which the prior conviction is being challenged. By not raising a timely objection, Smith waived his right to argue that the federal kidnapping conviction was not equivalent to a New York felony.

    The court stated: “We would only add that defendant failed to timely raise the issue of whether he was properly sentenced as a second felony offender by not controverting the allegations in the predicate felony statement (CPL 400.21 [3]). Accordingly, any question concerning whether defendant’s prior conviction of kidnapping under 18 USC § 1201 is equivalent to his conviction of a felony in New York has not been preserved for our review.”

    Judge Hancock’s concurring opinion disagreed with the Appellate Division’s application of *People v. Hicks*, arguing that the police action of transporting the defendant to the victim’s home for identification without probable cause was improper. However, Judge Hancock concurred in the result because he believed that the circumstances created probable cause justifying the intrusion, although this argument was not raised before the suppression court.