People v. Eastman

181 A.D.2d 1050, 582 N.Y.S.2d 586, 1992 N.Y. App. Div. LEXIS 4662

Opinion

— Judgment unanimously affirmed. Memorandum: Defendant contends that the predicate felony offender statute (Penal Law § 70.06) is unconstitutional as applied. He argues that it violates equal protection (US Const 14th Amend; NY Const, art I, § 11) because it permits the imposition of an enhanced sentence where, as here, defendant was convicted of a prior felony as defined outside the Penal Law and thereafter convicted of a felony as defined by the Penal Law, but not if the convictions occurred in the opposite order. We reject that contention (see, People v Clear-water, 98 AD2d 912, 913; see also, Dillard v LaVallee, 559 F2d 873, cert denied 434 US 999). We conclude that the definition of a "predicate felony conviction” (Penal Law § 70.06 [1] [b]) "must be viewed as signifying that the conviction of any felony in this State, including those defined in the Vehicle and Traffic Law, may serve as a 'predicate felony conviction’ ” (People v Clearwater; supra, at 913). Moreover, the enhanced sentence "for second felony offenders is based upon the nature of the second felony, not upon the order of conviction” (People v Clearwater, supra, at 913).

We have reviewed defendant’s remaining contention and find that it does not require reversal. (Appeal from Judgment of Jefferson County Court, Clary, J. — Burglary, 2nd Degree.) Present — Callahan, J. P., Boomer, Balio, Davis and Doerr, JJ.