Scenario 10:

Question : Defendant, 32, is convicted of rape in the first degree as a hate crime in violation of PL 130.35(1) and 485.05, for having forcible sexual intercourse with a 14 year old girl. He has a prior conviction for rape in the second degree committed twelve years ago, for having uncoerced sex with a 13 year old girl, and for which he received a sentence of five years probation. Under what statute should he be sentenced for the present offense?

Answer :

Defendant's prior conviction, a felony sex crime committed less than 15 years earlier involving sexual conduct with a child under 14 years of age, qualifies him as a second child sexual assault felony offender eligible to be sentenced under PL 70.07. Under this status, since the predicate crime was a class D felony, defendant would now receive a determinate sentence of between 12 and 30 years plus a 5 year period of post-release supervision. (Since defendant was over 18 at the time of commission of the predicate crime, the alternative determinate sentence of between 5 and 15 years provided by PL 70.07(5) is not available.)

On the other hand, conviction of this class B violent felony as a hate crime ought to require that defendant be sentenced pursuant to PL 485.10. Under this statute, when the specified offense is a class B felony, subdivision (3) provides enhanced terms of imprisonment if the defendant is otherwise sentenced pursuant to various designated sections in Article 70. However, since PL 70.07 was enacted after PL 485.10, the former is not among the enumerated sentencing statutes. Consequently, if defendant is indeed sentenced pursuant to PL 70.07, he can receive no corresponding "hate crime enhancement" to his sentence pursuant to PL 485.10.

Defendant's prior conviction is more than ten years old and he served no prison time, so he is no longer eligible to be sentenced as a second felony offender or second violent felony offender pursuant to PL 70.06 or 70.04.

In contrast to the statutory schemes for sentencing of second and second violent felony offenders, treatment as a second child sexual assault felony offender is discretionary with the People, who "may" (not "must") file the appropriate statement with the sentencing court (see CPL 400.19(2)). Thus, notwithstanding his prior conviction defendant may be sentenced as a first violent felony offender pursuant to PL 70.02. In this case, he would receive an enhanced sentence by operation of PL 485.10 of a determinate sentence of between 8 and 25 years plus post-release supervision of between 2 1/2 and 5 years. (It strains the fact pattern to the extreme to consider whether the "domestic violence exception" could also apply, although it is technically a possibility.)

GungaWeb handles the question like this:

Click on Article 130, then PL 130.35 to retrieve the charge. Scroll down to the Sentences function area, and use the drop-down list control to select "Second Child Sexual Assault Felony Offender." Click "Sentences" to view the sentencing table containing the following :

Click on the terms "sexual assault against a child" and "predicate felony conviction" to confirm their applicability under the fact pattern.

Next, click on Article 485 and PL 485.05 to select Hate Crimes. Under "Select Specified Offense", use the drop-down lists to select "completed offense" and PL 130.35(1). Click on "Store" to store this offense in memory for analysis. Scroll down to "Sentences", and use the drop-down list to select "First Felony Offender." Click on "Sentences" to view the following sentencing table fragment :

Click on "PL 485.10" to read the text of the statute and confirm that PL 70.07 is not among the sentencing statutes enumerated in PL 485.10(3), and that sentencing pursuant to PL 70.02 leads to the reported enhanced sentencing parameters.

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