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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1804
Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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In the New York State Code of Rules, What were the penal codes

Customer Question

In the New York State Code of Rules, What were the penal codes and definitions in 2001 for probation, suspended sentence and suspended imposition of sentence? (crime: possession narcotics with intent to sell)
Submitted: 8 years ago.
Category: Criminal Law
Expert:  Jim Reilly replied 8 years ago.
The general rules for sentencing and granting of probation have not changed since 2001, but there have been some changes with respect to specific crimes for which probation and/or suspension of sentence may not be granted.

New York also has a variety of laws relating to possession/sale of narcotics. If you can give me either the exact code section charged or the particular controlled substance involved, I will try to determine what the punishment/sentencing options were in 2001.
Customer: replied 8 years ago.

the code section is probably 220. something (not sure)

controlled substance with intent to sell

Expert:  Jim Reilly replied 8 years ago.
Yes, all of the controlled substance provisions are in Article 220 of the New York Penal Code. Without knowing the exact section or drug involved, however, I cannot give you a definitive answer to your question.

We could try another approach, though ... what exactly is your concern about the sentencing/probation considerations?
Customer: replied 8 years ago.

A similar case was that of US vs. Stallings


case: 301f3d919

8th circuit

maybe this will help find the codes.

or how does it apply in New York

Expert:  Jim Reilly replied 8 years ago.
US v Stallings involves a federal life sentence enhancement under 21 USC 841(b) based on prior felony convictions from Nevada and California. The federal court of appeal held that the California prior was not properly proved and therefore should not have been used to enhance the defendant's sentence.

Federal sentencing laws have no application to sentencing in New York state cases, so Stallings will have no effect on a current New York case. Nor does it help determine which code section applies in the case you are concerned with because that is a factual issue, dependent upon what drugs were involved and what charges were filed.

New York does have persistent felony laws which authorize similar enhancement for prior felonies. They are contained in Penal Code section 70.10 and Criminal Procedure Code section 400.20 and authorize extended imprisonment and lifetime supervision upon release from prison. The New York laws do have some similarities to the federal statutes, in that the priors must be properly noticed and proved beyond a reasonable doubt.

If your concern is sentencing under the New York persistent felony statutes and the validity of priors, then going back to your original question, the answer is that priors from 2001 can be used to enhance under the persistent felony law if they are valid and meet the requirements of Penal Code section 70.10 (b), which are somewhat more stringent than the federal rules:

(b) A previous felony conviction within the meaning of paragraph (a) of this subdivision is a conviction of a felony in this state, or of a crime in any other jurisdiction, provided:
(i) that a sentence to a term of imprisonment in excess of one year, or a sentence to death, was imposed therefor; and
(ii) that the defendant was imprisoned under sentence for such conviction prior to the commission of the present felony; and
(iii) that the defendant was not pardoned on the ground of innocence ....

Note in particular that for purposes of the New York persistent felony laws, a prior can be used to enhance only if the defendant was actually imprisoned on the prior. Therefore, cases in which probation was granted, sentence was suspended or imposition of sentence was suspended and no prison time was actually served cannot be used to enhance under the New York persistent felony offender law.