Court of Appeals: Any Felony Conviction Can Be Used for Three Strikes Statute

Court of Appeals

Court of Appeals

In People v. Clemon Jones, the Court of Appeals affirmed the defendant’s sentence of 15 years to Life a conviction of the crime of Criminal Possession of a Forged Instrument in the Second Degree, a class D felony.

Under New York Law, where a person has been convicted of two or more felonies on two or more occasions before he committed the current felony offense, he may be subject to severely enhanced punishment (three strikes and you’re out). Pursuant to Penal Law section 70.10, where a person has on at least two separate occasions been convicted of felonies in New York or elsewhere, that person can receive a sentence for his third felony conviction as if that conviction was for a class A-1 felony, which requires a sentence of at least 15 years to life, but may be as high as 25 years to life. Essentially, this is the most severe sentence a person can get in New York less than life without parol.

The crime that Mr. Jones was convicted of is a class D felony which ordinarily caries a maximum sentence of seven years. Additionally, since this crime is defined as a non-violent felony under New York law, for a first offense, the Court would have been obligated to set a maximum and a minimum that is one third the maximum. Therefore, the maximum sentence for a first offense under this statute would be 2 and 1/3rd years to 7. For a second felony offender, the minimum must be one half of the maximum sentence, thus, the worst it could have been for Mr. Jones would have been three and a half years to seven. Since he was convicted of two counts, he could have received consecutive sentences which would have doubled the sentence to 7 to 14 years.

Practically speaking, even if the trial court threw the book at Mr. Jones as a second felony offender, he would have been eligible for parole in less than seven years, would have reached a mandatory release date at some point around 10 years, and under no set of circumstances could he have been held beyond 14 years.

The issue that the Court of Appeals decided here was whether the out of state convictions used in this case, or any subsequent case must have a New York Equivalent. For a second felony adjudication, which increases the minimum portion of the sentence from one third the maximum to one half the maximum, the prior felony conviction must either be for a New York Felony, or an out of state felony that is identical to a New York felony. If an out of state felony does not have a New York equivalent, it cannot be used to increase the punishment. For example, possession of a certain quantity of marihuana may be a felony in another state, but that amount doesn’t qualify for any New York felony, then the out of state felony conviction could not be used to adjudicate a person a second felony offender in New York.

Here, the defendant had prior federal felony convictions from 1991 that have no New York equivalent. The defendant also had narcotics felony convictions under New York law in 1995. His current convictions for Criminal Possession of a Forged Instrument in the Second Degree occurred in 2007.

NOTE: To be adjudicated a second felony offender, the first felony had to occur no more than ten years before the current felony. Any time spent incarcerated for the first felony is excluded from the ten year calculation. Therefore, if the first felony conviction was from January 2001, but a person spent spent 5 years incarcerated and committed the second felony in January 2015, there would only be 9 years of unincarcerated time between convictions. The Persistent Felony statute does not contain any such 10 year requirement. Conceivably, for the second felony offender statute, Mr. Jones may not have been a second felony offender because the prior New York convictions were more than 10 years old and the decision is silent on whether the time was tolled due to incarceration.

The Court of Appeals here ruled that as the statute is written, the persistent felony offender statute does not require that the prior out of state or federal felony convictions have a New York equivalent. Since the statute doesn’t require equivalency, as long as the prior felony convictions are considered felonies in the jurisdiction that the convicted the defendant, those convictions can be used as predicate convictions for the New York Persistent Felony Offender statute and someone like Mr. Jones who committed a relatively low level, non-violent felony, gets to be treated like a murder and sentenced to a period of life time incarceration.

Read the original decision here.
People v Jones