People v. Balfour
| Decision Date | 13 June 1983 |
| Citation | 95 A.D.2d 812,463 N.Y.S.2d 859 |
| Parties | The PEOPLE, etc., Respondent, v. Peter BALFOUR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joel S. Ezra, New York City, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Halberstam and Nikki Kowalski, Brooklyn, of counsel), for respondent.
Before GULOTTA, J.P., and O'CONNOR, BRACKEN and BROWN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant, as limited by his brief, from a sentence of the Supreme Court, Kings County, imposed January 15, 1982, upon his conviction of criminal possession of a weapon in the third degree, on a plea of guilty, the sentence being a prison term of from 2 1/2 to 5 years, upon his adjudication as a second violent felony offender.
Sentence affirmed.
Defendant contends that it was error to sentence him as a second violent felony offender based upon his prior conviction on January 25, 1980 for the crime of attempted criminal possession of a weapon in the third degree. He argues (1) that the second violent felony offender statute (Penal Law, § 70.04) does not provide for the use of a conviction as a predicate violent felony conviction where, at the time of its commission, the offense underlying the conviction was not designated as a violent felony offense; and (2) that as applied to him, the second violent felony offender statutes (Penal Law, §§ 70.02 and 70.04) violate the ex post facto clause of article 1 ( §§ 9, 10) of the United States Constitution.
We disagree Section 70.04 (subd. 1, par. ) of the Penal Law permits the use of a prior felony conviction as a predicate violent felony conviction if, at the time the present violent felony offense was committed, the offense underlying the prior felony conviction was one of those felonies designated under section 70.02 of the Penal Law as violent felony offenses. Although at the time the violent felony offender law was originally enacted (L.1978, ch. 481, § 67), the offense underlying defendant's prior felony conviction (attempted criminal possession of a weapon in the third degree) had not been designated as a violent felony offense, subdivision 1 of section 70.02 was amended prior to the commission of the instant offense to include as a class E violent felony offense "an attempt to commit any of the felonies of criminal possession of a weapon in the third degree as defined in subdivisions four and five of section 265.02 as a lesser included offense of that section as defined in section 220.20 of the criminal procedure law" (L.1980, ch. 233, § 2, eff. on the 60th day after June 13, 1980). Defendant's prior conviction falls within this category. Accordingly, at the time defendant committed the instant offense,...
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