People v. Mashaw
| Decision Date | 26 December 1978 |
| Parties | The PEOPLE of the State of New York v. Gary R. MASHAW, Defendant. . Lawrence County |
| Court | New York County Court |
Defendant was convicted on December 8, 1978, of Burglary in the Third Degree (Penal Law sec. 140.20) upon his plea of guilty to the first count of indictment 78-128, and is to be sentenced January 3, 1979. The District Attorney upon the entry of the plea filed a statement (CPL sec. 400.21(2)) wherein it is alleged that the defendant had been convicted in the St. Lawrence County Court on July 31, 1975, of Driving While Intoxicated, as a felony (Vehicle and Traffic Law sec. 1192(3), (5)), and sentenced on September 8, 1975, to an indeterminate term of imprisonment. The People thereby assert that defendant has a predicate felony conviction (Penal Law sec. 70.06(1)(a)) and must be sentenced as a second felony offender upon the burglary conviction entered December 8, 1978 (Penal Law sec. 70.06(2)).
Upon the preliminary examination (CPL sec. 400.21(3)) the defendant admitted the prior conviction, failed to controvert the allegations contained in the statement, but contested the claim that the prior conviction for Driving While Intoxicated, as a felony, constituted a predicate felony conviction. Counsel for defendant through a notice of motion and attorney's affidavit made December 15, 1978, seeks a determination from the court that defendant is not a second felony offender. Oral arguments by counsel for the respective parties were heard on December 22, 1978, and the court renders its findings and conclusions:
Penal Law sec. 70.06(1)(b)(i) provides the criteria for determining whether a prior conviction constitutes a predicate felony conviction.
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.
The meaning of the term "felony" contained in the cited statutory provision is defined in Penal Law sec. 10.00(5) as " . . . an offense for which a sentence to a term of imprisonment in excess of one year may be imposed." It is apparent that "felony" is not limited to offenses contained in the Penal Law, but rather extends to any offense found in a chapter of our laws for which an indeterminate sentence may be imposed.
It is well settled that a person who stands convicted of Driving While Intoxicated, as a felony, after having previously been convicted of a Penal Law felony offense, cannot be subjected to second felony offender treatment (People v. Speranza, 80 Misc.2d 798, 364 N.Y.S.2d 83 (1974), People v. Tyler, 46 A.D.2d 997, 361 N.Y.S.2d 794 (1974), and People v. Smith, 58 A.D.2d 635, 396 N.Y.S.2d 31 (1977)). Defendant contends that although he was convicted of Driving While Intoxicated as a felony followed by a conviction of Burglary, he should not be treated as a second felony offender, since if the order of the convictions were reversed he could not be sentenced as a second felony offender.
The argument of defendant may initially be viewed as one which underscores an ironic quirk in the law permitting an inequal treatment of offenders; however, further consideration of the circumstances and the applicable statutory provisions causes this court to conclude that the contention of defendant is without merit. A second felony offender is subjected to a more severe sentence not upon the basis that he has twice been convicted of felony offenses, but instead the Legislature of this State has deemed that a person convicted of a felony under the Penal Law will incur an increased sentence if he has previously been convicted of a felony. Penal Law sec. 70.06 may in this sense be considered a statutory warning to the potential offender. The Legislature in enacting the provisions of Penal Law sec. 70.06 clearly limited the term "second felony offender" as defined in para. 1(a) therein to " . . . a person who stands convicted of a felony defined In this chapter . . . " (emphasis added), and if the Legislature had the intent to restrict the meaning of ...
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People v. Gagne
...CPL § 400.14(1)(b)(i) (L.1984, ch. 673, eff. Nov. 1, 1984); Vehicle and Traffic Law §§ 510(2)(a)(i)-(iii), 510(3)(h), 530(2); People v. Mashaw, 97 Misc.2d 554 compare, Cal. Vehicle Code § 23210) The Legislature, presumptively aware of the Court of Appeals affirmance in Pardee, sought to ame......
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People v. Caruso
...felony conviction be for a felony defined in the Penal Law (see, People v. Clearwater, 98 A.D.2d 912, 470 N.Y.S.2d 934; People v. Mashaw, 97 Misc.2d 554, 412 N.Y.S.2d 91). We have considered the defendant's remaining contentions and find them to be either without merit or unpreserved for our ...
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People v. Clearwater
... ... In our view, the omission was intentional and must be viewed as signifying that the conviction of any felony in this State, including those defined in the Vehicle and Traffic Law, may serve as a "predicate felony conviction" (see People v. Mashaw, 97 Misc.2d 554, 412 N.Y.S.2d 91) ... Defendant's constitutional argument is based upon the theory that the statutory scheme permits the imposition of a harsher sentence where, as here, a defendant is first convicted of a felony as defined outside the Penal Law and thereafter ... ...