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DILLARD v. LAVALLEE

April 5, 1977

Taylor DILLARD, Petitioner,
v.
J. Edwin LaVALLEE, Warden of the Clinton Correctional Facility, and Benjamin Ward, Commissioner of the New York State Department of Correctional Services, Respondents



The opinion of the court was delivered by: PRATT

MEMORANDUM AND ORDER

 PRATT, District Judge.

 By habeas corpus, 28 U.S.C. § 2254, petitioner seeks to review his sentence as a second felony offender which was imposed on February 3, 1975 in the County Court, Nassau County, after a jury trial and conviction of robbery in the first degree. The Appellate Division, Second Department, unanimously affirmed the judgment of conviction on May 10, 1976. Leave to appeal to the New York Court of Appeals was denied on June 15, 1976.

 In support of his request for issuance of a writ of habeas corpus, petitioner contends that New York State has denied him the equal protection of the laws as guaranteed by the fourteenth amendment by sentencing him under the second felony offender statute, N.Y. Penal Law § 70.06, which then read in pertinent part: *fn1"

 
1. Definition of second felony offender.
 
(a) A second felony offender is a person who stands convicted of a felony defined in this chapter, other than a class A felony, after having previously been subjected to one or more predicate felony convictions as defined in paragraph (b) of this subdivision.
 
(b) For the purpose of determining whether a prior conviction is a predicate felony conviction the following criteria shall apply:
 
(i) The conviction must have been in this state of a felony, or in any other jurisdiction of an offense for which a sentence to a term of imprisonment in excess of one year or a sentence of death was authorized irrespective of whether such sentence was imposed;
 
* * *
 
3. Maximum term of sentence. The maximum term of an indeterminate sentence of a second felony offender must be fixed by the court as follows:
 
(a) For a class B felony, the term must be at least nine years and must not exceed twenty-five years;
 
* * *
 
4. Minimum period of imprisonment. The minimum period of imprisonment under an indeterminate sentence for a second felony offender must be fixed by the court at one-half of the maximum term imposed and must be specified in the sentence.

 Since he had been convicted of the felony of driving while intoxicated *fn2" in 1971, petitioner's 1975 conviction for robbery automatically invoked the provisions of § 70.06, and he was sentenced to an indeterminate term of four and one-half to nine years, rather than the zero to twenty-five-year term which may be imposed on one who commits a class B felony as a first offense. Had the sequence of his two convictions been reversed, petitioner correctly notes, that is, had the robbery conviction preceded the conviction for driving while intoxicated, then the provisions of § 70.06 would not have been invoked, and petitioner would not have been subject to a mandatory minimum jail term. Indeed, the trial court indicated at the imposition of ...


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