People v. Tolbert, 1999 N.Y. Int. 0048 (Apr. 1, 1999).

CRIMINAL LAW - SENTENCING - PERSISTENT VIOLENT FELONY OFFENDERS

ISSUE & DISPOSITION

Issue

Whether trial courts should apply the amended determinate sentence for class E second violent felony offenders as the minimum sentence for class E persistent violent felony offenders.

Disposition

Yes. Although the legislature did not mandate a minimum sentence for class E persistent violent felony offenders, the trial court was correct in imposing the amended determinate sentence for class E second violent felony offenders.

SUMMARY

Defendant was indicted for third degree criminal possession of a weapon, a class D felony. In accordance with a plea agreement, Defendant was allowed to plead guilty to third degree attempted criminal possession of a weapon, a class E felony. Defendant also admitted he was a persistent violent felony offender and was sentenced to four years to life. Because no statutory minimum sentence is specified for class E persistent violent felony offenders, the trial court imposed the statutory sentence for class E second violent felony offenders. Defendant contested the legality of his sentence. The Appellate Division affirmed the sentence. The Court of Appeals affirmed the Appellate Division's order.

In People v. Green, 68 N.Y.2d 151 (N.Y. 1986), the Court of Appeals indicated that trial courts have the authority to fill statutory sentencing gaps and held that application of the sentence for second violent felony offenders to persistent violent felony offenders was proper. In 1995, the Legislature amended the sentencing statutes by establishing determinate sentences for second violent felony offenders and increasing minimum sentences for persistent violent felony offenders. Defendant argued that, following these amendments, trial courts could not fill the sentencing gap by using the amended determinate sentence for second violent felony offenders as the minimum sentence for persistent violent felony offenders. Rather, Defendant argued that trial courts could only impose the pre-amendment minimum sentence for each felony class. The Court disagreed, finding that in using the amended determinate sentence for second violent felony offenders, the lower courts correctly interpreted the holding of Green. The Court further stated that the sentence imposed was consistent with the legislative goal behind the 1995 amendments, which was to increase the minimum sentences for all persistent violent felony offenders.

Prepared by the liibulletin-ny Editorial Board.