my friend was charged with criminal possession of controlled substance in the third.b felony in September of this year 2013.. when he was 19, back in 1997, he was convicted of BURGLARY 2ND and was sentenced to five years for that charge and was released from parole in may of 2002. my question is," they are now charging him as a PREDICATE felon and it has been over 11 years since he was released from his previous charge. From my understanding is that they can only do this if it is befor 10 years from the time he completed his sentence." he has a public defender and they only came to visit him once since he has been arrested and that was to tell him that they are offering him 9 years with 3 post release supervision and that he should take the deal. Can someone please give me some more insite into this subject.
1 Answer from Attorneys
The time spent in prison is excluded from the 10 year period. So the 10 year period runs from when he was released fom jail. Even adding 5 years to 1997 brings your friend to 2002, which would not make him a predicate for a 2013 arrest unless there is other jail time. The statute specifically states that time spent incarcerated is exluded.... so parole time does not count. See Penal Law section 70.06(1)(v).
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