Wednesday, February 21, 2007

AD1: prior "conviction" for CPW3 purposes measured from time of plea or verdict

People v Montilla, 2007 NY Slip Op 01367 [available here]

To be guilty of Criminal Possession of a Weapon in the Third Degree ("CPW3") under Penal Law section 265.02[1], the defendant must have "been previously convicted of any crime." (CPL 265.02[1].) In Montilla, the defendant pleaded guilty to a crime, and while awaiting sentence on the guilty plea was arrested for possessing a gun. The People charged defendant with CPW3, and argued that the defendant's guilty plea counted as a prior conviction even though sentence had not yet been imposed. (Montilla, 2007 NY Slip Op 01367.) The First Department agreed, noting the CPL "expressly provides that a 'conviction' occurs at the time of a plea or verdict of guilty, unlike a 'judgment,' which consists of a conviction and the sentence imposed thereon." (Id.)

There were no other decisions of note from the First Department's February 15 packet.