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Court Finds Defendant a Danger to Society

A New York Criminal Lawyer said that, on October 3, 1997, the defendant, on Probation in connection with a prior Assault conviction, attacked an emergency medical technician, in a park in the Bronx. Defendant stabbed the medical technician several times in the chest, inflicting two puncture holes in his shirt and a 1-1 1/2 inch slash of his bulletproof vest. It was the vest which saved his life. Defendant was indicted on charges of Attempted Murder, Assault, and related charges. On April 8, 1998, following a jury trial, he was acquitted of Attempted Murder and convicted of Attempted Assault in the Second Degree.

A New York Criminal Lawyer said that, on May 12, 1998, the Court served notice (“Notice”) upon the parties of its intention to conduct a hearing to determine whether defendant should be adjudicated a persistent felony offender, and if so, whether a persistent felony offender sentence should be imposed. The hearing commenced on June 4, 1998 and continued for six days, concluding on June 25, 1998. On June 25, 1998, the Court adjudicated defendant a persistent felony offender and sentenced him to a term of 15 years to life. This opinion sets forth the bases for said determination and sentence.

A Nassau Criminal Lawyer said the issue in this case is whether defendant should be adjudicated a persistent felony offender, and if so, whether a persistent felony offender sentence should be imposed.

The principle of imposing enhanced sentences upon repeat offenders is not new to the law. New York State was the first in the country to enact such legislation, to wit, Chapter 30 of the Laws of 1796.

While statutory provisions vary from state to state, the laws of virtually all have provisions which either mandate or permit an increased sentence based upon a prior conviction or convictions. Approximately one half of the states authorize life sentences upon third or fourth convictions. The New York persistent felony offender law addresses two categories of such offenders: (1) one convicted, within 10 years, of three violent felonies (PL § 70.08), and (2) a defendant convicted of three non violent felonies, or a combination of violent and non violent felonies, provided all three are not violent.

A Queens Criminal Lawyer said counsel argued that unlike the New York. Burglary statute that requires a trespass, the California Burglary provision, requires only a simple intent to enter a building or an enclosure. Defense counsel thus argued: “For that reason, it is incongruent with a New York Burglary conviction or any other New York felony and consequently cannot serve as a basis for a sentence enhancement in New York.” There is no need to engage in an examination or comparison of the constituent elements of the two burglary statutes because PL § 70.10 does not require that a crime in another jurisdiction be a felony under New York law. The statute requires only that it be a “crime in any other jurisdiction” for which “a sentence to a term of imprisonment in excess of one year … was imposed.”

We hold that the imposition of second felony offender status upon individuals convicted in other jurisdictions of crimes which in such other jurisdictions warrant sentence of imprisonment in excess of one year is rationally related to the valid governmental aim of treating habitual offenders more severely than first time offenders. The equal protection clause does not mandate absolute equality of treatment but merely prescribes that, absent a fundamental interest or suspect classification, a legislative classification be rationally related to a legitimate State purpose.

The Legislature, in enacting the challenged provision, exercised its considered judgment to provide that the seriousness of a crime should be determined by the severity of the sentence and the norms prevailing in the jurisdiction in which a crime was committed. There is no warrant for any alarm in what may be termed as exaggerated fears of frivolous or perverse sister-State punishment. The possible disparity of treatment between prior New York offenders vis-a-vis prior out-of-State offenders does not vitiate the legislative decision that an individual who has previously elected to violate the criminal standards of the society in which he was found should be treated as an habitual offender.

In brief, we believe that the repeat offender scheme is entirely rational. First, persistent offender sentencing is discretionary, while second offender sentencing is mandatory. New York might reasonably have concluded that it was necessary to circumscribe narrowly what constitutes a qualifying crime for purposes of the mandatory sentencing enhancements for second offenders while providing a looser definition of predicate crimes for purposes of the discretionary sentencing enhancements for persistent offenders. Second, predicate felonies for persistent offender status must have resulted in a sentence of imprisonment of more than one year, while predicate crimes for second offender status need not have resulted in imprisonment. This ensures that those deemed persistent offenders based on federal or out-of-state crimes without a New York counterpart have in fact committed serious crimes.

The defense conceded that the California Burglary conviction constituted a crime for which a sentence in excess of one year was imposed. In defendant’s second enumerated challenge to the California conviction, he argued that there had been no actual allocution when he entered his guilty plea. This argument is without merit. The California Court conducted an ample allocution, as revealed by the transcript of defendant’s guilty plea, wherein defendant’s lawyer informed the Court.

Defendant’s final argument was that no probation report was presented. Defendant is incorrect. The plea minutes reveal that the California court had received and reviewed the probation report. Thus, all of defendant’s arguments addressed to his 1980 California conviction are rejected. After reviewing the transcript of the defendant’s 1976 Bronx County plea and sentence to Robbery Third Degree, the defense conceded that no constitutional infirmity to said conviction existed.

Defense counsel conceded that the rap sheet is a substantially accurate reflection of defendant’s “actual criminal history”. The evidence at the hearing before me reveals that this “actual criminal history”, constitutes a thesaurus of criminal behavior spanning over three decades. It covers a wide gamut of criminality involving crimes against property, crimes against individuals, crimes against public order and authority, crimes for economic gain, crimes of violence, and the use and threatened use of weapons. The defendant’s crimes have been directed at strangers and even against his own spouse.

Commencing in 1964, defendant has terrorized and victimized individuals in New York and California. He has compiled a total of 34 arrests in New York, resulting in at least 23 convictions, and 20 arrests in California, resulting in at least 10 convictions. There are only 5 years within this 34 year period of virtually uninterrupted criminal activity during which the defendant has not been incarcerated. In some years, defendant had multiple convictions within the same year. Defendant’s rap sheet, unfurled, extends to over 18 feet. His crimes of violence have resulted in one death, and, but for a near miracle, almost caused a second.

On April 22, 1996, the defendant punched one individual in the face with his closed fist, causing the victim to fall backward and strike his head on the sidewalk. The victim lapsed into a coma and died a few days later. In the trial before me, defendant’s appearance on the stand revealed him a bundle of rage and fury, a time bomb waiting to explode. He admitted he “gets agitated real easily” and once agitated “nothing stops him from doing what he wants to do.”

Defendant’s total disregard for, and abuse of authority, are evidenced by his escape from a New York State narcotics facility in 1970; a history of bench Warrants in Manhattan, Brooklyn, The Bronx; his outstanding violation of probation in California; his parole violation conviction in California; and his vicious armed attack upon EMS technician Kelleher on October 3, 1997, within weeks after being placed on probation after his plea of guilty to Assault Third Degree.

Defendant’s use of a knife in his assault upon the victim was not his first experience with knives or weapons. In May, 1996, defendant threatened a store security guard with a pair of scissors. Twenty years earlier, in 1975, he displayed what appeared to be a pistol in the commission of a robbery. His propensity for violence is evidenced by his convictions for Attempted Resisting Arrest, Robbery, Assault, Burglary, and two convictions of spouse beating.

At the hearing before me, the defendant was given the opportunity to present evidence in his behalf. He admitted that the criminal record herein described is, in fact, his and that he is responsible for all of the crimes listed. However, he and his attorney urged this Court not to sentence the defendant as a persistent felony offender but rather to impose a minimum sentence, specifically, that authorized upon conviction of Attempted Assault Second Degree. This view overlooks entirely the purpose behind the persistent felony statute, which authorizes the sentencing court to treat defendants more severely if “by repeated criminal acts they have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.”

The defense also argued that because a number of defendant’s convictions were misdemeanors, they were somehow “trivial”. Included among these so-called “trivial” crimes are two convictions for spouse beating, an assault which resulted in the death of the victim, threatening a security guard with a pair of scissors, and other similar “trivial” criminal acts. The only witness to testify in behalf of the defendant, besides the defendant himself, was his common-law wife. Although she described the defendant’s relationship with his and her family as “beautiful” and “loving” and testified that he “gets along very well with everybody,” not a single relative, neighbor or friend appeared as a character witness or to offer any kind words about the defendant.

Defendant’s conviction by a jury on April 8, 1998 of Attempted Assault upon the victim represented what appeared to be his fourth felony conviction in New York alone. 7 He was thereafter convicted by me of violation of the terms of Probation imposed upon him a few weeks prior to his assault upon Kelleher. He has been convicted 31 additional times in two states for a multitude of felonies, misdemeanors, and offenses. His voluminous criminal record includes eight (8) felonies.

Based upon the evidence presented at the hearing, I find that defendant’s history of violence, of disdain for lawful authority, of uninterrupted criminal behavior, evinces an individual who poses a real and imminent danger and threat to the lives, safety, and security of residents of every community in which he chooses to circulate. He is an evil, vicious, and violent predator and totally incorrigible. He was a menace to society on October 3, 1997, when he left his home armed with an 18 inch knife, seeking someone to stab. His criminal history demonstrates that he has been a menace to society for many years, and that he remains so. “By his repeated criminal acts” he has overwhelmingly demonstrated that he is “simply incapable of conforming to the norms of society as established by its criminal law.” If he is not stopped, and stopped now, he will take another human life.

The court therefore concludes that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision is necessary to best serve and protect the public interest.

Accordingly, it is my sentence that the defendant be incarcerated for a period of 15 YEARS TO LIFE. I also impose a concurrent sentence of 1 year, upon defendant’s conviction of violation of probation.

If you wish to question your sentence in a criminal case, seek the legal advice of a Bronx Criminal Attorney and Bronx Drug Crime Attorney at Stephen Bilkis and Associates.

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