| People v Meckwood |
| 2011 NY Slip Op 06047 [86 AD3d 865] |
| July 28, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Lonnie R.Meckwood, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered August 13, 2010, convicting defendant upon his plea of guilty of the crime of attemptedrobbery in the first degree.
In 2009, defendant was charged by indictment with robbery in the first degree and criminalpossession of a weapon in the fourth degree. In full satisfaction of the indictment, defendantpleaded guilty to attempted robbery in the first degree and was sentenced, as a second violentfelony offender, to an agreed-upon prison term of eight years, to be followed by five years ofpostrelease supervision. Defendant now appeals and we affirm.
Defendant contends that County Court erred by finding that his prior conviction for burglaryin Pennsylvania qualified as a predicate felony conviction, resulting in his being classified forsentencing purposes as a second violent felony offender. An individual may be sentenced as asecond violent felony offender if he or she has been previously convicted in another state of acrime involving conduct which, if committed in New York, would qualify as a violent felony(see Penal Law § 70.04 [1] [a], [b] [i]). Defendant does not deny that he has a priorconviction in Pennsylvania for burglary or that the underlying conduct if committed in New Yorkwould have qualified as a violent felony; instead, he argues that he was 18 years old at the timeof his conviction and that, had the crime been committed in New York, he would have been[*2]eligible for youthful offender status. Since a youthful offenderadjudication may not be used as a predicate felony for enhanced sentencing purposes (seeCPL 720.35 [1]), defendant maintains that County Court should not have classified him as asecond violent felony offender when it imposed sentence. We disagree. "[I]t is well settled that'[w]here youthful offender treatment is not accorded in a foreign jurisdiction, the fact that thedefendant would have been eligible for youthful offender treatment had the offense beencommitted in New York does not preclude the use of such conviction in New York as a predicatefelony for enhanced sentencing' " (People v Coolbaugh, 259 AD2d 781, 782 [1999],quoting People v Arroyo, 179 AD2d 393, 394 [1992], lv denied 79 NY2d 997[1992]; see People v Treadwell, 80 AD2d 697, 698 [1981]).
Defendant also argues that the provision that tolls the 10-year look-back period used todetermine if a prior conviction qualifies as a predicate violent felony violates his constitutionalright to equal protection of the law (see Penal Law § 70.04 [1] [b] [v]). To qualifyas a predicate violent felony, the sentence received for the prior felony conviction "must havebeen imposed not more than [10] years before commission of the felony of which the defendantpresently stands convicted" (Penal Law § 70.04 [1] [b] [iv]). In calculating this 10-yearlook-back period, "any period of time during which the person was incarcerated for any reasonbetween the time of commission of the previous felony and the time of commission of thepresent felony shall be excluded and such [10-]year period shall be extended by a period orperiods equal to the time served under such incarceration" (Penal Law § 70.04 [1] [b] [v]).
Here, defendant argues that the tolling provision treats repeat felony offenders who commitcrimes during the 10-year look-back period that result in their incarceration differently and moreharshly than other second felony offenders who have not been incarcerated during this period. Hedoes not challenge the constitutionality of the 10-year look-back provision or claim that it wasimproperly applied in determining whether his Pennsylvania conviction qualified as a predicateviolent felony. Rather, he argues that there is no rational basis for the distinction written into thestatute that treats convicted felons who have been in prison during this 10-year period differentlyfrom those who were not. Again, we disagree. Second felony offender statutes are designed "todeter recidivism by enhancing the punishments of those who, having been convicted of felonies,violate the norms of civil society and commit felonies again" (People v Walker, 81 NY2d661, 665 [1993]). We find that the tolling provision contained in Penal Law § 70.04 (1) (b)(v) is rationally related to this goal as "[a] prior felon can properly be required to demonstratethat he [or she] can function in society in a law-abiding manner for a 10-year period in order toavoid being sentenced as a recidivist" (People v Orr, 57 AD2d 578 [1977]; accordPeople v Tatta, 196 AD2d 328, 331 [1994], lv denied 83 NY2d 972 [1994]).Obviously, time in prison has limited value in determining whether a convicted felon canfunction in society as a law-abiding citizen. For this reason, excluding such time periods from thelook-back period is rationally related to the objectives of the statute.
Finally, defendant did not object to the content of the predicate felony statement filed by thePeople or claim, at the time of his sentence, that it failed to conform with CPL 400.15. Therefore,this issue has not been preserved for our review (see People v McDowell, 56 AD3d 955, 955 [2008]; People v Ruffin, 42 AD3d 582[2007], lv denied 9 NY3d 881 [2007]).
Mercure, J.P., Rose, Lahtinen and Garry, JJ., concur. Ordered that the judgment is affirmed.