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Decisions

Court of Appeals Reverses Predicate Felony Adjudication

February 11, 2016

Appellant Freddie Thompson was convicted of first-degree assault in 1994.  At sentencing on that conviction, the court imposed five years of probation.  Over 18 months later, appellant was arrested for criminal possession of a controlled substance in the fifth degree.  As a result, his probation on the assault conviction was revoked and he was resentenced to 2 to 6 years in prison. 

At his 2011 sentencing on a subsequent conviction of first-degree robbery, the trial court ruled that, for predicate felony purposes, the controlling date of appellant’s prior assault conviction was the date of the resentencing, which fell within the 10-year look-back period set forth in Penal Law § 70.04(1)(b)(iv), rather than the date of the original sentencing, which fell outside it.  The court therefore adjudicated appellant a second violent felony offender, and the Appellate Division, Second Department, affirmed that ruling.  

On February 11, 2016, the Court of Appeals reversed the ruling, holding that the controlling date of appellant's prior conviction was the date of his initial sentence to probation.  The Court vacated appellant's second violent felony offender adjudication and remanded the case for resentencing.  

Alex Donn of Appellate Advocates briefed and argued the case in the Court of Appeals.