What are the sentencing guidelines for predicate felons?

Knowing whether you are a predicate felon is critical in understanding the potential sentence you may be facing if convicted of a crime. In New York State, the sentencing guidelines for predicate felons are much harsher than those for first-time offenders. For instance, a first-time offender convicted of a class “C” violent felony (such as a common gun charge in NY under PL § 265.03) faces a mandatory minimum sentence of three and a half (3.5) years of incarceration. However, for a violent predicate felon convicted of the same charge, the mandatory minimum period of incarceration increases to seven (7) years. Likewise, when a first-time offender is convicted of a class “E” felony (like Grand Larceny in the Fourth Degree under PL § 155.30), there is the potential for a sentence of probation or even a conditional discharge. However, for predicate felons, there is a mandatory minimum period of incarceration (1.5 – 3 years) required if convicted of a class “E” non-violent felony. Because of this, it is essential that you understand whether you are a predicate felon when considering your potential sentencing exposure.

What is a predicate felon? 

A predicate felon means that you are considered a second felony offender for sentencing purposes. Essentially what this means is that you have previously been convicted of a felony offense. With that being said, when it comes to sentencing, simply having been convicted of a felony offense in the past is not enough. PL § 70.06 details how it is determined whether someone is considered a second felony offender. Here are some of the more common issues that come up: 

1. To be considered a predicate felon for sentencing purposes, you must have been sentenced to the prior felony within the past ten (10) years, excluding any time that you spent incarcerated, for any reason. 
2. The sentence on your prior conviction must have been imposed before the commission of the current offense, and the conviction must have been for a crime considered a felony in New York State, or an equivalent offense in another state that carried the potential sentence of more than a year incarceration. 

What is the difference between a violent and a non-violent predicate felon? 

The main difference between a violent and non-violent predicate felon hinges on whether the underlying felony conviction was for a class “A” felony (with some exceptions), or an offense that is classified as a violent felony offense. Common violent felony offenses include Criminal Possession of a Weapon in the Second Degree (PL § 265.03), Assault in the Second Degree (PL § 120.05), and Burglary in Second Degree (PL § 140.25). Outside of this factor, the determination remains mainly the same as described above. 

The reason that this is important, is because if you are a second violent felony offender for sentencing purposes and you are currently charged with another violent offense, you face a greater minimum period of incarceration if convicted. For instance, a violent predicate felon convicted of a class “C” violent felony faces a mandatory minimum period of incarceration of seven (7) years, whereas a non-violent predicate would only be facing a mandatory minimum period of incarceration of five (5) years. Because of that, it is critical that you are completely honest with your attorney about your prior criminal history, so that he and you can have a meaningful conversation about the potential exposure you face on your current criminal charges. 

What are some other considerations in sentencing? 

New York State does not only have classifications for violent and non-violent predicate felons. In fact, there are also specific classifications for second child sexual assault felony offenders, and persistent violent felony offenders. 

What is a second child sexual assault felony offender? 

Just as there are specific guidelines on sentencing for sex offenses, there are specific guidelines on sentencing for people who are convicted of a sexual assault against a child when they have previously been convicted of a sexual assault against a child. Something to note here though, is that the ten (10) year period described above for predicate felons, is fifteen (15) years in these circumstances. Additionally, if someone is being sentenced as a second child sexual assault felony offender, the sentencing can become quite complex, and is based upon what class of felony you are currently being sentenced to, as well as the class of felony that you were previously sentenced to – PL § 70.07. Because of the complexities involved with this type of sentencing, it is crucial that you speak with an attorney experienced in handling sex-related offenses that can discuss your potential sentencing exposure when you have been charged with a sex-offense. 

What are persistent felony offenders? 

Persistent felony offenders can be broken into two categories – persistent felony offenders, and violent persistent felony offenders.

Persistent felony offenders are defined as those who stand convicted of any felony offense after having previously been convicted of two or more felony offenses. Determining whether someone was convicted of a felony offense here is a similar assessment to the one described above, although it’s not as simple as finding that someone has two (2) felonies on their record. Whether they did separate prison sentences factors into this assessment, 

Violent persistent felony offenders are defined as folks who have been previously convicted of two violent felony offenses as described above. Being sentenced as a persistent violent felony offender can have a serious impact on a person’s life, because the maximum term for those sentenced is life imprisonment. Additionally, while the minimum terms vary, they can be extremely lengthy, and go as high as a twenty-five-year minimum. This is where we sometimes see sentences such as 25 – life. 

Sentencing in criminal cases can be complex, and understanding your potential exposure is crucial when negotiating with the District Attorney’s Office for a possible resolution. Because of that, you need an experienced criminal defense attorney on your side. Mike Schillinger is a former Assistant District Attorney who can help you understand your potential sentencing exposure. Give us a call today so that we can start helping you plan your defense.