AD3 order dated July 28, 2011, affirming judgment of conviction. Decision below: 85 AD3d 865. Read, J., granted leave November 23, 2011.

ISSUES PRESENTED: (1) Whether an out-of-state conviction can be used as a predicate felony where defendant would have been eligible for YO status had he committed the crime in New York. (2) Whether the tolling provision of PL §70.04 is unconstitutional. (Assigned counsel: Brent R. Stack, c/o Fitzsimmons, Mack and Ellis, P.C., 3223 Church St., P.O. Box 811, Valatie, NY 12184.)

Issue before the Court:  Whether an out-of-state felony conviction can serve as a predicate if the defendant could have been eligible for YO adjudication in NY?  Does the 10-year tolling provision of 70.04(1)(b)(4) violate Equal Protection?

Held:  No and no, in a decision by Judge Jones.

CAL observes: The Court does not appear sympathetic to recidivists.