People v. Bell , 138 A.D.2d 298 ( 1988 )

Judgment of the Supreme Court, New York County (Myriam J. Altman, J.), rendered January 12, 1987, convicting the defendant, after a nonjury trial, of two counts of bribing a witness, 15 counts of failure to file New York State sales tax returns, four counts of failure to file New York City general corporation tax returns, two counts of serving liquor without a license, and one count of conspiracy to obstruct governmental administration, and sentencing him as a second felony offender to concurrent terms of imprisonment of from 2 to 4 years on the bribery counts and 1 year on the various misdemeanor counts, modified, on the law, to vacate the sentence and defendant’s adjudication as a second felony offender and to remand the matter for resentencing.

The defendant was sentenced on November 8, 1973 on a jury verdict which convicted him for events in April of that year. His conviction was reversed and a new trial directed because of a prejudicial jury charge. (People v Bell, 38 NY2d 116.)

His conviction after a new trial was reversed because of evidence introduced as to conversations between a codefendant who had died after the first trial and a drug dealer. (People v Bell, 48 NY2d 913.) He finally pleaded guilty to the crime of burglary in the third degree and was sentenced on June 9, 1980 to time served (some 60 days) and 58 months’ probation.

Penal Law § 70.06 (1) (b), the provision for sentence enhancement for a second felony offender, has the following exception:

"(iv) Except as provided in subparagraph (v) of this paragraph, sentence must have been imposed not more than ten years before commission of the felony of which the defendant presently stands convicted;

"(v) In calculating the ten year period under subparagraph (iv), any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration”.

The Appellate Division, Second Department, has stated, "A prior felon can properly be required to demonstrate that he can function in society in a law-abiding manner for a 10-year period in order to avoid being sentenced as a recidivist.” (People v Orr, 57 AD2d 578.)

It is clear that the 10-year period runs from the date of the sentence rather than the commission of the crime. (People v Woodman, 94 Misc 2d 266, 273 [Sup Ct, Bronx County, Rosenberg, J.], affd without opn 73 AD2d 847.)

The question we have is whether the date of the first sentence or the date of the last sentence for the same crimes should be used.

It would seem that successfully objecting to improper procedures, which delayed his eventual sentencing, should not be used against the defendant in determining whether the enhancement provision should apply. Concur—Kupferman, J. P., Ross, Ellerin and Smith, JJ.