Under New York’s Penal Law Section 70.10, to sentence a person as a persistent felon requires the accused to have two prior felony convictions and to have served time in state prison on at least two prior felony convictions. Penal Law 70.10(1)(b)(i) clarifies the sentence for each conviction must be in excess of one year.
It is important to remember that just because the prosecutor threatens to sentence you under the persistent felony statute, does not mean that it applies. Keep in mind, with regards to Persistent Felony Offender sentencing, the crimes must be sequential, the sentence is not mandatory even when it applies, and there is no statutory period in which the two felonies must have occurred.
However, regardless of whether one qualifies under the persistent felon criteria, Persistent felony offender sentencing is within the discretion of the judge and may be based on factors other simply prior sentences. While the law has faced constitutional challenges based on this requirement, it has thus far been upheld by the New York Court of Appeals and the Second Circuit.
Long story short, if you are being threatened with persistent sentencing, make sure your Criminal Defense Attorney in Buffalo NY has examined the record and it actually applies. Again, simply because a prosecutor or even a judge threatens you with persistent felony sentencing, does not mean that it applies.