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What constitutes a predicate felony offender?

Staten Island, NY |

I was released from prison in December of 2001 on a drug felony. In June of 2011 my company filed a police report claiming there was theft. In January of 2012 I was arrested and charged with Grand Larceny (a little over 50K) a class C felony. At the time of my arrest more than 10 years has passed since my release from prison. I was told that I could be sentenced as a predicate because the time the crime was reported was less than 10 years from my release. Is it the time the crime was reported or the date I was arrested that determines if I'm sentenced as a predicate felon? By the way this happened in Queens County. Thanks.

Attorney Answers 3


Penal Law § 70.06 Sentence of imprisonment for second felony offender.
1. Definition of second felony offender.
(a) A second felony offender is a person, other than a second violent
felony offender as defined in section 70.04, who stands convicted of a
felony defined in this chapter, other than a class A-I felony, after
having previously been subjected to one or more predicate felony
convictions as defined in paragraph (b) of this subdivision.
(b) For the purpose of determining whether a prior conviction is a
predicate felony conviction the following criteria shall apply:
(i) The conviction must have been in this state of a felony, or in any
other jurisdiction of an offense for which a sentence to a term of
imprisonment in excess of one year or a sentence of death was authorized
and is authorized in this state irrespective of whether such sentence
was imposed;
(ii) Sentence upon such prior conviction must have been imposed before
commission of the present felony;
(iii) Suspended sentence, suspended execution of sentence, a sentence
of probation, a sentence of conditional discharge or of unconditional
discharge, and a sentence of certification to the care and custody of
the division of substance abuse services, shall be deemed to be a
(iv) Except as provided in subparagraph (v) of this paragraph,
sentence must have been imposed not more than ten years before
commission of the felony of which the defendant presently stands
(v) In calculating the ten year period under subparagraph (iv), any
period of time during which the person was incarcerated for any reason
between the time of commission of the previous felony and the time of
commission of the present felony shall be excluded and such ten year
period shall be extended by a period or periods equal to the time served
under such incarceration;
(vi) An offense for which the defendant has been pardoned on the
ground of innocence shall not be deemed a predicate felony conviction.

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It is the date of incident and not date of arrest that counts so you would be a predicate felony offender under those facts.

Joseph A. Lo Piccolo, Esq.
President, Criminal Courts Bar Association 11'-12'
Hession Bekoff & Lo Piccolo
1103 Stewart Ave, Suite 200
Garden City, NY 11530
516-408-3666 (o) / 516-408-3833 (f)

I am a criminal defense attorney practicing in Nassau, Suffolk and New York City. The above information is not a substitution for a meeting whereas all potential legal issues can be discussed.

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1 lawyer agrees


Date of incident so as you present the facts you appear to be a predicate felon.

I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 385-8015 or via email at The above answer is for informational purposes only and not meant as legal advice.

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