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New York Court of Appeals Discusses Penal Law 70.70


Courts, judges, and juries decide cases based on what the law says. But what if the law seems to be saying two different things? And what if the law in two states are different? Which one should be followed? An expert discusses a most interesting case that answers these two questions.

Malik Y or Yusuf M was convicted of Criminal Possession of a Controlled Substance in the Third Degree, Criminal Possession of a Controlled Substance in the Fourth Degree, and Criminally Using Drug Paraphernalia in the Second Degree.

Before the sentence was given, the prosecution filed and charged Yusuf with two prior criminal offenses. He was found guilty and sentenced to prison on September 30, 1996, of Robbery with a Dangerous Weapon in North Carolina. This is a violent criminal offense and could possibly extend his sentence for the current case. He was also charged on the same day with Possession with Intent to Sell and Deliver a Controlled Substance. Y appealed that these two convictions could not be used to charge him as a Second Felony Drug Offender and extend his sentence.

The study explains that according to Penal Law 70.70, a person’s sentence can be lengthened if it were proven that he had a prior violent criminal offense. Penal Law 70.70 states that “violent felony offense” has the same meaning as in Penal Law 70.02.

Yusuf argued that according to Penal Law 70.02, a “violent felony offense” includes any of the criminal offenses in New York. It does not include cases where the prior offense occurred in a foreign jurisdiction, in this case, North Carolina.

The Court provides examples of certain provisions which allow the use of prior criminal offenses that occur in foreign jurisdictions. On second review however, the Court of Appeals noted that what should be considered was Penal Law 70.70. In this section, the law does not clearly say that prior cases in foreign jurisdictions can be included.

The Court also brings up Criminal Procedure Law 400.21 which explains how courts should decide whether a person on trial is a second criminal offender. It states that the person’s prior conviction for a similar situation in foreign jurisdictions should be reviewed.

This prior “violent felony offenses” was brought into play when the Drug Law Reform Act was made into law in 2004. A specific provision in this law changed how drug offenders were sentenced from an indeterminate system to a clearly defined one. It also added in some changes to the Criminal Procedure Law. It set out how to determine if offenders had second felony offenses. It also added that these rules should be applied to determine if offenders were second felony drug offenders. If they were, then their sentences could be lengthened.

The Court of Appeals then tried to reconcile the conflicting provisions of the Penal Law and the Criminal Procedure Law. It saw that the Penal Law defined the types of prior offenses an offender had to have to done to extend his sentence. The Criminal Procedure Law on the other hand, explained how a Court could judge if a prior offense was a violent criminal offense or not and if it could extend the offender’s sentence.

According to the judge, the wording of a law is very important. It is always assumed that whatever is not included in the wording is meant not to be included. However, when the law does not clearly state what it means on a certain provision, then the Courts should judge the intention of the legislative body who wrote it. What did they want to achieve by writing that certain law?

They should also consider the law as a Body. They should not separate each law and take what it means word for word, but try to understand what it means as to how the people who wrote it meant, and how it relates to other laws. Also, if there are two possible interpretations of a law, then the Court should choose the one kinder to the offender.

The Court of Appeals admitted that Yusuf had valid arguments. Even then, the prosecutor’s side held much more weight. The Court of Appeals said that after carefully analyzing both the Penal Law and the Criminal Procedure Law, it found that the intent of the legislative bodies seemed to be to include prior offenses in foreign jurisdictions.

Also, when the Court reviewed other laws relating to the case, it found that although there was a trend to lessen the sentences of drug offenders, there was also a trend to differentiate between drug offenders with violent prior offenses and non-violent prior offenses.

Therefore, the Court of Appeals decided that an offender with prior violent offenses in foreign jurisdictions is eligible for an extended sentence.

Yusuf however, was not one to give up. Reports state that his next move was to argue that the robbery in North Carolina could not be used as a prior violent offense under New York law because the definitions of robbery in New York and North Carolina were not the same. Therefore, it is possible to commit a robbery in North Carolina that wouldn’t be counted as a robbery in New York.

The lawyer explains that in New York, if a person uses force on another person before deciding to steal from him, then it is not a robbery. In North Carolina, whether or not there is an intent to steal, if force is used during the incident, then it is a robbery. Also, in North Carolina, even a robbery attempt counts as a robbery and has the same sentence. In New York however, an attempt at robbery is a lesser crime than a completed robbery and has the same sentence.

The Court of Appeals agrees that Y has a valid argument here. However, given the facts of the robbery, it finds that Y’s argument does not count. According to reports, Yusuf, threatened Phillip Raphael Nunley with a double-barreled, sawed-off shotgun, and took from him twelve gold necklaces, a wallet and a Panasonic compact disc radio worth around $200. Using Y’s argument, he threatened N with the gun and as an afterthought, then decided to take his things. However, it seems obvious that in this situation, he used the shotgun to scare Nunley so that he could rob him. Given these facts, Y can then be charged with first, second, and third degree robbery under New York Law.

In conclusion, the Court of Appeal decided that Y should spend a certain amount of time in prison, and have a post-release supervision period applicable to second offense drug offenders with prior violent criminal offenses.

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