County Court, Monroe County, February 6, 2017

Sandra J. Doorley, District Attorney, Rochester (Roman Misula of counsel), for plaintiff.

Timothy P. Donaher, Public Defender, Rochester (Emily Rosmus and Tracie Hiatt of counsel), for defendant.

Defendant was convicted of grand larceny in the fourth degree (Penal Law §§ 20.00, 155.30 [1]) following a non-jury trial. Thereafter, the People moved to adjudicate defendant a persistent felony offender for purposes of sentencing (see CPL 400.20; Penal Law § 70.10).

On or about November 17, 2016 a hearing was conducted in accordance with CPL 400.20. Defendant declined to controvert the specific allegations set forth in the statement of the court, and thus the four convictions submitted by the People were deemed as evidence (see CPL 400.20 [7]). The People thereafter sought to admit 24 exhibits (collectively court exhibit 1) pertaining to defendant's history and character and the nature and circumstances of his criminal conduct, nearly all of which were admitted into evidence over defendant's objection.^[FN1] In relevant part, the admitted exhibits consisted of crime reports, accusatory instruments and supporting depositions pertaining to numerous misdemeanor and felony-level convictions spanning approximately 15 years,^[FN2] and unpaid restitution orders in conjunction with those convictions. Additionally, the victim in the instant case submitted a letter to the court.{**58 Misc 3d at 217}

Defendant further declined to offer any evidence with respect to his history and character. Following the close of proofs, the parties offered oral arguments in support of their respective positions.^[FN3] The following constitutes the decision and order of the court.

A "persistent felony offender" is defined as a person who stands convicted of a felony after having been previously convicted of two or more felonies (Penal Law § 70.10 [1]). In order to qualify, the previous felony conviction must have resulted in a sentence of imprisonment in excess of one year, and the defendant must have been imprisoned under the sentence for such conviction before he committed the present felony offense (see Penal Law § 70.10 [1] [b]). If a court determines a defendant is a persistent felony offender, and further finds that his history and character and the nature and circumstances of his criminal conduct indicate that extended incarceration and lifetime supervision would best serve the public interest, a sentence of imprisonment authorized for a class A-I felony may be imposed (see Penal Law § 70.10 [2]; CPL 400.20).

Turning first to the predicate offenses set forth in the statement of the court, the credible evidence established, beyond a reasonable doubt (CPL 400.20 [5]), that defendant was previously convicted of two or more qualifying felonies, those being: (1) grand larceny in the fourth degree (Penal Law § 155.30 [1]), on which defendant was convicted December 17, 2004 and sentenced to a prison term of 11/2 to 3 years; (2) scheme to defraud in the first degree (Penal Law § [*2]190.65), on which defendant was convicted June 11, 1997 and sentenced to a prison term of 11/2 to 3 years; (3) four separate offenses of criminal possession of a forged instrument in the second degree (Penal Law § 170.25), and a fifth offense of forgery in the second degree (Penal Law § 170.10 [1]), on which defendant was convicted in various counties on August 17, 1990, August 10, 1990, August 7, 1990, July 5, 1990 and November 12, 1991 respectively, and sentenced to prison terms of 31/2 to 7 years, 3 {**58 Misc 3d at 218}to 6 years, 31/2 years, 2 to 4 years, and 3 to 6 years,^[FN4] with all sentences imposed concurrent to one another; and (4) grand larceny in the fourth degree (Penal Law § 155.30 [1]), on which defendant was convicted August 3, 1985 and sentenced to a prison term of 11/2 to 3 years. Furthermore, defendant was imprisoned under sentence for each such conviction prior to his commission of the present felony (see Penal Law § 70.10 [1] [b] [ii]). Finally, defendant was not pardoned on the ground of innocence and none of the aforementioned convictions are excludable for predicate offense purposes (see Penal Law § 70.10 [1] [b] [iii], [iv]). Accordingly, the court concludes that defendant is a persistent felony offender (Penal Law § 70.10 [1]). Now, the court must determine whether the relevant evidence pertaining to defendant's history and character and the nature and circumstances of his criminal conduct establishes, by a preponderance of the evidence (CPL 400.20 [5]), that extended incarceration and lifetime supervision is warranted (Penal Law § 70.10 [2]).

It is clear that the court is vested with discretionary authority to impose a sentence of imprisonment specified for a class A-I felony if a defendant is shown to be a persistent felony offender (Penal Law § 70.10 [2]; People v Sailor, 65 NY2d 224, 234 [1985], cert denied 474 US 982 [1985]). In light of the severity of the persistent felony offender sentencing scheme, adjudication as such "should be utilized only in the most extreme cases [and] . . . [o]nly when extraordinary facts are involved" (People v Wright, 104 Misc 2d 911, 919 [Sup Ct, NY County 1980]). The People duly note this statute is to be applied sparingly.

It is indisputable that defendant has a lengthy history of criminal activity spanning nearly three decades. Beginning with his first arrest in 1971, defendant has demonstrated a steady and nearly unbroken pattern of committing similar crimes: defrauding large corporations, small businesses, and individuals alike. Empirically speaking, it is evident that defendant has disregarded any opportunity to reform, and has further neglected to express even a scintilla of remorse as evidenced not only by his perpetual criminal conduct, but his failure to pay court-ordered restitution for his crimes. Here, defendant{**58 Misc 3d at 219} once again stands convicted of another act of theft by engaging in conduct which exploited the desperation of an elderly and defenseless victim. That defendant has continuously committed fraudulent acts despite numerous criminal proceedings—many of which resulted in conviction, incarceration, and court-ordered restitution—causes the court considerable pause, as his history casts severe doubt upon the makeup of his moral fiber and his ability to integrate into society as a functioning, law-abiding citizen.

Nevertheless, the court is of the opinion that a persistent felony offender sentence is not warranted, and hereby declines to adjudicate defendant accordingly. The history and character of defendant, and the nature and circumstances of his criminal conduct are not such that extended [*3]incarceration (the minimum term of which is 15 years) and lifetime supervision would best serve the public interest. The court certainly does not minimize the effect of defendant's crimes upon the community, nor can it possibly ignore the frequency and repetitive nature of his transgressions. However, the overarching theme of defendant's conduct—theft and fraud—is demonstrated by a pattern of petty misdemeanor and low-level, nonviolent felony offenses. Additionally, a significant amount of time (nearly 10 years) has elapsed between the commission of the instant offense and defendant's most recent conviction.

Defendant now stands convicted of grand larceny in the fourth degree, a class E nonviolent felony. Without persistent felony offender adjudication—but as a second felony offender (see Penal Law § 70.06)—defendant is subjected to an indeterminate sentence with a maximum term between 3 and 4 years, and a minimum term of half the maximum (Penal Law §§ 60.01 [3] [a]; 70.00 [1], [2] [e]; 70.06 [3] [e]; [4] [b]). In this instance, a cavernous divide exists between the statutory maximum as to the underlying offense and the statutory minimum for a persistent felony offender, and the legislature has not provided a framework authorizing the court to impose a sentence which falls somewhere in between. The court now finds itself in the arduous position where the sentencing parameters of neither a class E felony nor a class A-I felony appear to equitably suit the facts of this case and the history and character of defendant. Under circumstances such as this, defendant should be afforded a certain lenity in order to avoid what the court deems to be an excessive sentence. In other words, the absence of a legislative scheme to rectify the divide between the available{**58 Misc 3d at 220} sentences for defendant should not be held against him. Accordingly, this disparity should be resolved in favor of defendant by imposing the lesser of the available penalties. The court is unpersuaded by the evidence adduced at the hearing, which consisted primarily of criminal convictions occurring between 15 and 30 years ago, that the significant upward departure to lifetime supervision is warranted.

In light of defendant's nonviolent criminal history, and the length of time which has elapsed since his last arrest and conviction, the court finds that the People have failed to establish that adjudication as a persistent felony offender would best serve the public interest.

It is hereby ordered that the People's application is denied in its entirety.