People v. Irving

54 A.D.2d 765, 387 N.Y.S.2d 697, 1976 N.Y. App. Div. LEXIS 14434

Opinion

Appeal by defendant from a judgment of the County Court, Westchester County, dated June 27, 1974, convicting him of burglary in the third degree, grand larceny in the third degree, possession of burglar’s tools, criminal mischief in the fourth degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence upon him as a second felony offender. Judgment affirmed. The defendant pleaded guilty to a previous offense prior to the effective date of the present predicate felony statute (Penal Law, § 70.06). At the time of that plea an actual sentence of not more than one year precluded use of that conviction to secure second felony sentencing upon a subsequent conviction. The current statute requires reference to the authorized sentence in order to determine whether a crime is a predicate felony. In this case the trial court determined that defendant’s prior conviction, not a predicate felony under the former statute, was a predicate felony under the present statute. This was not error (see People v Bond, 80 Misc 2d 413). We have examined the other contentions raised by defendant and find them to be without merit. Hopkins, Acting P. J., Martuscello, Cohalan, Damiani and Shapiro, JJ., concur.