People v. Samuel Small


AD2 order dated December 18, 2013, affirming judgment of conviction. Decision below: 112 AD3d 857, 976 NYS2d 575. Smith, J., granted leave August 8, 2014. Argued October 22, 2015.
ISSUES PRESENTED: (1) While the defendant was in police custody after being arraigned on a felony complaint charging burglary, the People filed a felony complaint charging him with an earlier burglary but did not have him “arrested” or arraigned on it. Rather the People presented both burglaries to the grand jury and secured an indictment on both; was the defendant entitled to notice that the earlier burglary would be presented to the grand jury? (2) Whether the predicate felony offense was beyond the 10 year period because of tolling of a 14-month period, during which the defendant was incarcerated on a parole violation later voided on a State habeas writ. (Assigned counsel: William Loeb and Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)


The secondary issue, but perhaps the more interesting one, dealt with whether time spent in custody on a parole violation that a habeas court found was not supported, could properly be tolled in order to bring an even earlier conviction within the ten year period for determining a defendant’s predicate status.


The Court held that such time should not be excluded and, therefore, the defendant was improperly sentenced as a predicate offender because the prior conviction fell outside the ten-year period.

CAL Observes:

While time in prison “for any reason” is tolled under the predicate statutes, the Court has long held that “any” does not mean “every.”  In People v. Love, 71 N.Y.2d 711 (1988), and People v. Dozier, 78 N.Y.2d 242, 249 (1991), the Court found that time spent in custody on vacated convictions or otherwise unconstitutional convictions could not be tolled.  This case builds on those decisions and explicitly rejects the claim that only subsequently invalidated or vacated convictions could be excluded from the tolling analysis.  The analysis supports the First Department’s ruling that time spent in custody on Catu-violative offenses cannot be tolled.  See People v. Jimenez (1st Dep’t Oct. 29, 2015).