People v. Freddie Thompson
AD2 order dated June 11, 2014, modifying judgment of conviction by reducing the sentence in the interest of justice and otherwise affirming. Decision below: 118 AD3d 822, 987 NYS2d 189. Smith, J., granted leave December 18, 2014. Argued January 13, 2016.
ISSUE PRESENTED: 10-year look-back period for adjudication as a second violent felony offender: where defendant originally received probation on the predicate offense and was later violated on probation and resentenced, whether the operative sentencing date for the predicate is the original sentencing date or the date of the resentencing on the VOP. (Assigned counsel: Alex Donn & Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)
Issue before the Court: Was Thompson properly adjudicated a predicate felon where the date on which he was sentenced for a prior conviction to probation was outside the ten-year look-back period but the date on which probation was revoked and imprisonment imposed was within ten years?
Held: The original date on which a defendant is sentenced to probation—not the date on which probation is revoked—is the one that governs for purposes of determining whether a prior conviction was within Penal Law § 70.04's look-back period.
In this case, an earlier-in-time sentencing date benefited the defendant, and is in a sense consistent with the Court’s holding in People v. Boyer, 22 N.Y.3d 15 (2013). In both cases, the Court was called upon to interpret what it means for “sentence” to have been “imposed” under Penal Law § 70.04(1), and in both cases the Court answered that the original date on which sentence was imposed, not the date of resentencing, governs. (However, this case was arguably an easier one than was Boyer, in which the defense had argued that no lawful sentence was imposed until the Sparber resentencing—a fact the Court there elided by calling the imposition of post-release supervision mere correction of a clerical error.) Despite their similarities, the Court chose to emphasize different modes of statutory interpretation in reaching its conclusions here and in Boyer: in Boyer, a purported purposivist analysis; here, lenity.
Further, what this case reveals is that New York’s recidivist sentencing scheme is leaving a growing catalog of litigation in its wake, with entries coming up in future Court terms (for example, Roni Smith and Keith Fagan, which present the question of whether a predicate infected with Catu error can be used to enhance a sentence). Will text, purpose, lenity, or something else win the day?