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1
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OPINION
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EXTRACTED KEY WORDS
PENAL LAW SENTENCING SECOND FELONY FELONY OFFENDER DEFENDANT PREDICATE PRIOR FELONY APPELLANT MEMORANDUM PREDICATE FELONIES SENTENCING PURPOSES FELONY CONVICTION PUNISHMENT RESPONDENT CONTENDS VEHICLE TRAFFIC LAW FELONY COMMIT CONTRAST LANGUAGE PRECEDING LEGISLATURE SUBDIVISION JUDGE BELLACOSA SMITH LEVINE CIPARICK WESLEY CONCUR |
PEOPLE, & C., RESPONDENT, v. KELVIN SHANNON, APPELLANT.
89 N.Y.2d 1000, 679 N.E.2d 633, 657 N.Y.S.2d 394 (1997).
March 25, 1997
4 No. 49 (1997 NY Int. 41)
Decided March 25, 1997
_________________________________________________________________
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Mary Kay Yanik, for Appellant.
David E. Gann, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant was sentenced, as a second felony offender, to a prison term
of from two to four years after he pled guilty to criminal sale of a
controlled substance in the fifth degree. On appeal, defendant argues
that he was improperly sentenced as a second felony offender on the
ground that non-Penal Law felonies cannot be considered predicate
felonies for sentencing purposes under Penal Law § 70.06(1)(b)(i).
Defendant contends that the lower courts violated his equal protection
rights by treating his two prior Vehicle and Traffic Law felony
convictions as predicate felonies, which subjected him to harsher
punishment based solely on the order the crimes were committed.
Contrary to defendant's interpretation, the express language of Penal
Law § 70.06(1)(b)(i) does not require that the prior felony be one
defined by the Penal Law for defendant to be classified as a second
felony offender at sentencing. Rather, the specific omission of any
restrictive language preceding the definition of what constitutes a
"predicate felony conviction" for sentencing purposes indicates that
the Legislature intended to include any prior felony conviction,
including a Vehicle and Traffic Law felony, as a predicate felony to
enhance the severity of punishment. This subdivision stands in sharp
contrast to the preceding subdivision which explicitly limits second
felony offender status to individuals who commit a "felony defined in
this chapter" (Penal Law § 70.06(1)(a)). The Legislature designed
Penal Law § 70.06(1)(b)(i) to punish a Penal Law felony offender more
harshly based on both the nature of the second felony and the
commission of any prior felony. The statute serves an important
deterrent purpose that is neither irrational nor unconstitutional
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