THE PEOPLE &C., RESPONDENT, v. JEROME WALKER, APPELLANT.
81 N.Y.2d 661, 623 N.E.2d 1, 603 N.Y.S.2d 280 (1993).
October 12, 1993
4 No. 174 (1993 NY Int. 183)
Decided October 12, 1993
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
David Juergens, for Appellant.
Elizabeth Clifford, for Respondent.
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KAYE, CHIEF JUDGE:
Should defendant be sentenced as a second felony offender when the
first crime--which was a felony at the time of his first
sentencing--has been reclassified as a misdemeanor by the time of his
second felony offender sentencing? The Appellate Division answered
this question in the affirmative, as do we.
In February 1984, in Monroe County, defendant was sentenced following
a conviction for grand larceny, third degree, a class E felony, then
defined as a theft of property valued in excess of $250 (former Penal
Law § 155.30(1)). The conviction was based on theft of a radio worth
more than $250 but less than $1,000. Effective November 1, 1986, the
statute was amended to increase the minimum value to $1,000, and
renamed grand larceny, fourth degree (L 1986, ch 515, § 1). After the
1986 amendments, a theft of property below $1,000, in the absence of
aggravating factors, became petit larceny, a Class A misdemeanor
(Penal Law § 155.25).
In November 1990 defendant was indicted on felony weapons possession
charges and later found guilty after trial. The People sought to have
him sentenced as a second felony offender (see Penal Law § 70.06), but
the trial court declined, reasoning that the conduct for which he was
sentenced as a felon in 1984 would constitute only a misdemeanor under
existing law. On the People's appeal, the Appellate Division reversed
and remitted for resentencing as a second felony offender, concluding
that defendant should not have the benefit of the 1986 amendments
because his conviction was final before their effective date. A Judge
of this Court granted defendant leave to appeal, and we now affirm.
SNIPPETS:
Should defendant be sentenced as a second felony offender when the first crime--which was a
In February 1984, in Monroe County, defendant was sentenced following a conviction for grand
The conviction was based on theft of a radio worth more than $250 but less than $1,000.
The People sought to have him sentenced as a second felony offender, but the trial court
On the People's appeal, the Appellate Division reversed and remitted for resentencing as a
A Judge of this Court granted defendant leave to appeal,
To qualify as a predicate felony offense for purposes of sentence enhancement, a prior
Defendant urges that his 1984 conviction should not be considered a felony for present
Penal Law § 10.00defines felony as "an offense for which a sentence to a term of imprisonment
Placing great emphasis on the verb "may," defendant would have us hold that a prior in-state
There is no indication that the Legislature intended the general definition of "felony" to be
The statute's goal is to deter recidivism by enhancing the punishments of those who, having
The Legislature's definition in the second felony offender statute signals its intent to look
Responding to these concerns, in 1975 the Legislature added the phrase "and is authorized in
Defendant next argues that the 1986 amendment was ameliorative in nature, and should
When, between the time a person commits a criminal act and the time of sentencing, a criminal
Absent a constitutional violation, the validity and effect of a final judgment of
While the statute does indeed treat these categories differently, there is no equal
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