Scenario 4:

Question : Defendant, a potential second felony offender, is charged with criminal possession of a controlled substance in the first degree contrary to PL 220.21(1). Defendant can provide material assistance to drug enforcement agents and is willing to plead to the class A-II felony of criminal possession in the second degree (PL 220.18(1)) with the understanding that in consideration of a cooperation agreement with authorities, defendant may be placed on lifetime probation. The prosecuting assistant district attorney rejects defendant's offer out of hand, pointing out that as a second felony offender, if convicted of a class A felony defendant must receive a mandatory term of imprisonment. Defense counsel maintains defendant's record is not a legal obstacle. Who is correct?

Answer : Defense counsel is correct.

Defendant's status does not preclude the proposed sentence, which is available to second felony offenders.

GungaWeb handles the question like this:

Click on Article 220, then PL 220.21 to retrieve the charge. Click on LIO next to the subdivision charged, and select PL 220.18. Or, select PL 220.18 directly from the Table of Contents for Article 220. Scroll down to the Sentences function area, and use the drop-down list control to select Second Felony Offender as follows:

Click on Sentences to obtain the following Sentencing Report.

Under the section labled "Revocable", click on the highlighted reference to PL 70.06(5) to observe that, "Notwithstanding any other provision of law the court may sentence a person convicted of a class A-II felony or a class B felony defined in article two hundred twenty of this chapter to lifetime probation in accordance with the provisions of section 65.00." Thus, defense counsel is in this instance correct.

N.B.: If the defendant is placed on probation for this crime and will therefore be at liberty following sentencing, don't forget to impose the statutory mandatory 6 month suspension of driving privileges! (See "Additions", above.)

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