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New York Kings County Convicted Burglary Felony Offender Lawyers Attorneys

The People of the State of New York, Plaintiff, v. Jose Moran, Defendant

Supreme Court of New York, Criminal Term, Kings County

September 16, 1981

Facts:

On July 23, 1981, defendant was convicted, after pleading guilty to the entire indictment, of attempted burglary in the second degree, criminal mischief in the fourth degree, and possession of burglar’s tools. At the time the plea was accepted, the court promised to sentence the defendant, after arraigning him as a second felony offender (Penal Law, § 70.06), to a term of imprisonment of two to four years, and, although advised of the fact that the defendant’s record included several felony convictions, further promised not to sentence the defendant as a persistent felony offender (Penal Law, § 70.10). The People filed a motion for an order directing a hearing under N.Y. Crim. Proc. Law § 400.20 to determine whether defendant should be sentenced as a persistent felony offender.

Issues:

Whether defendant should be sentenced as a persistent felony offender?
Whether the defendant’s first felony conviction qualify as a predicate felony under section 70.10 of the Penal Law

The Court finds that the Section 70.10 of the Penal Law defines a persistent felony offender as a person “other than a persistent violent felony offender who stands convicted of a felony after having previously been convicted of two or more felonies, as provided in paragraphs (b) and (c) of this subdivision”. Paragraph (b) provides that “A previous felony conviction within the meaning of this subdivision is a conviction of a felony in this state, or of a crime in any other jurisdiction, provided: (i) that a sentence to a term of imprisonment in excess of one year, or a sentence to death, was imposed therefor; and (ii) that the defendant was imprisoned under sentence for such conviction prior to the commission of the present felony; and (iii) that the defendant was not pardoned on the ground of innocence”. Paragraph (c) is not relevant to the issues herein.  It is indisputable that the defendant has a lengthy history of criminal activity, including numerous misdemeanor convictions.  However, after having reviewed the information provided by the New York City Department of Probation, the office of the Kings County District Attorney, and court records of the defendant’s prior convictions, the court is of the opinion that a persistent felony offender sentence is not warranted, and that a hearing is therefore unnecessary.

In light of the foregoing, it is this court’s view that the imposition of a sentence of imprisonment in the New York City Department of Correction for an indeterminate term should not be considered a sentence of imprisonment in excess of one

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