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New York Consolidated Laws

N.Y. Penal Law § 70.10 (2026)

Sentence of imprisonment for persistent felony offender

✓ current as of May 2026
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§ 70.10 Sentence of imprisonment for persistent felony offender.
  1. Definition of persistent felony offender.
  (a) A persistent felony offender is a person, other than a persistent
violent felony offender as defined in section 70.08, who stands
convicted of a felony after having previously been convicted of two or
more felonies, as provided in paragraphs (b) and (c) of this
subdivision.
  (b) A previous felony conviction within the meaning of paragraph (a)
of this subdivision is a conviction of a felony in this state, or of a
crime in any other jurisdiction, provided:
  (i) that a sentence to a term of imprisonment in excess of one year,
or a sentence to death, was imposed therefor; and
  (ii) that the defendant was imprisoned under sentence for such
conviction prior to the commission of the present felony; and
  (iii) that the defendant was not pardoned on the ground of innocence;
and
  (iv) that such conviction was for a felony offense other than
persistent sexual abuse, as defined in section 130.53 of this chapter;
grand larceny in the fourth degree as defined in subdivision twelve of
section 155.30 of this chapter; grand larceny in the third degree as
defined in subdivision three of section 155.35 of this chapter; grand
larceny in the second degree as defined in subdivision three of section
155.40 of this chapter; or grand larceny in the first degree as defined
in subdivision two of section 155.42 of this chapter.
  (c) For the purpose of determining whether a person has two or more
previous felony convictions, two or more convictions of crimes that were
committed prior to the time the defendant was imprisoned under sentence
for any of such convictions shall be deemed to be only one conviction.
  2. Authorized sentence. When the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a persistent
felony offender, and when it is of the opinion that the history and
character of the defendant and the nature and circumstances of his
criminal conduct indicate that extended incarceration and life-time
supervision will best serve the public interest, the court, in lieu of
imposing the sentence of imprisonment authorized by section 70.00,
70.02, 70.04, 70.06 or subdivision five of section 70.80 for the crime
of which such person presently stands convicted, may impose the sentence
of imprisonment authorized by that section for a class A-I felony. In
such event the reasons for the court's opinion shall be set forth in the
record.
Notes of Decisions
Cited in 329 cases (22 in the last 5 years), 1972–2025 · leading case: People v. Rivera, 833 N.E.2d 194 (NY 2005).
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People v. Rivera, 833 N.E.2d 194 (NY 2005). · cites it 34× “Defendant asks us to overrule People v Rosen ( 96 NY2d 329 [2001]), in which we sustained the constitutionality of Penal Law § 70.10 and Criminal Procedure Law § 400.”
Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010). · cites it 12× “WESLEY, Circuit Judge: Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York’s persistent felony offender statute, N.Y. Penal Law § 70.10 . Each petitioned for a writ of habeas…”
The People v. Dwight Giles / The People v. Sean Hawkins, 25 N.E.3d 943 (NY 2014). · cites it 14× “08), "who stands convicted of a felony after having previously been convicted of two or more felonies" (Penal Law § 70.10 [1] [a]). Penal Law § 70.”
Barney v. Conway, 730 F. Supp. 2d 264 (W.D.N.Y. 2010). · cites it 26× “Specifically, Barney contends, the enhanced sentence violated his Sixth Amendment rights because it was based on facts not submitted to the jury and not proven beyond a reasonable doubt, in violation of his Sixth Amendment right to a jury trial.”
The People v. Michael E. Prindle, 80 N.E.3d 1026 (NY 2017). · cites it 5× “From the first of those challenges, we have held that the statute (Penal Law § 70.10 [1] [a]) falls within the exception provided by Almendarez-Torres , and thus outside the scope of the Apprendi rule, because it exposes defendants to an enhanced sentencing range based only on…”
People v. Quinones, 906 N.E.2d 1033 (NY 2009). · cites it 5× “In so moving, the People sought to treat defendant’s class D felony as a class A-I felony (Penal Law § 70.10 [2]) and have defendant sentenced to an indeterminate prison term of 25 years to life (Penal Law § 70.”
People v. Stokes, 744 N.E.2d 1153 (NY 2001). · cites it 2× “The court sentenced defendant to 15 years to life as a persistent felony offender pursuant to Penal Law § 70.10. Defendant thereafter filed a notice of appeal and, as an indigent, requested assignment of appellate counsel.”
People v. Rawlins, 884 N.E.2d 1019 (NY 2008). · cites it 4× “[3] The People subsequently moved for a persistent felony offender sentencing adjudication pursuant to Penal Law § 70.10 and CPL 400.20. Over defendant's Apprendi v New Jersey ( 530 US 466 [2000]) objection — that the sentence enhancement statutes require judicial fact-finding…”
Besser v. Walsh Phillips v. Artus Portalatin v. Graham Morris v. Artus, 601 F.3d 163 (2d Cir. 2010). · cites it 8× “WINTER, Circuit Judge: The principal question on appeal is whether New York state court decisions affirming sentences enhanced under New York’s persistent felony offender (“PFO”) statute, N.Y. Penal Law § 70.10 , unreasonably applied clearly established federal law.”
Brown v. Greiner, 258 F. Supp. 2d 68 (E.D.N.Y 2003). · cites it 10× “The second persistent felony offender statute is N.Y. Penal Law § 70.10 . This statute is designed to provide enhanced punishment for recidivists who fail to qualify as mandatory persistent violent felony offenders under § 70.”
People v. Battles, 942 N.E.2d 1026 (NY 2010). · cites it 4× “20; Penal Law § 70.10). Enhanced sentencing under these provisions *61 is conditioned upon a jury verdict convicting a defendant of a felony and two judicial findings described in CPL 400.”
People v. Stokes, 290 A.D.2d 71 (N.Y. App. Div. 2002). · cites it 6× “Defendant next challenges County Court’s imposition of a consecutive 15-year to life prison sentence under the persistent felony offender statute (see, Penal Law §§ 70.10, 70.25 [2-a]). Defendant contends that it is harsh and excessive as out of proportion to the harm inflicted…”
Show all 329 citing cases →
— N.Y. Penal Law § 70.10(1) — 4 cases
Brown v. Greiner, 258 F. Supp. 2d 68 (E.D.N.Y 2003). “The second persistent felony offender statute is N.Y. Penal Law § 70.10 . This statute is designed to provide enhanced punishment for recidivists who fail to qualify as mandatory persistent violent felony offenders under § 70.”
Seifert v. Keane, 74 F. Supp. 2d 199 (E.D.N.Y 1999).
Brown v. Greiner, 253 F. Supp. 2d 413 (E.D.N.Y 2003).
People v. Locenitt, 2018 NY Slip Op 439 (N.Y. App. Div. 2018).
— N.Y. Penal Law § 70.10(1)(a) — 2 cases
People v. Polite, 2018 NY Slip Op 6118 (N.Y. App. Div. 2018).
People v. Lydon, 2022 NY Slip Op 05714 (N.Y. App. Div. 2022).
— N.Y. Penal Law § 70.10(2) — 4 cases
Barney v. Conway, 730 F. Supp. 2d 264 (W.D.N.Y. 2010). “Specifically, Barney contends, the enhanced sentence violated his Sixth Amendment rights because it was based on facts not submitted to the jury and not proven beyond a reasonable doubt, in violation of his Sixth Amendment right to a jury trial.”
Warren v. Miller, 78 F. Supp. 2d 120 (E.D.N.Y 2000).
McCool v. New York State, 29 F. Supp. 2d 151 (W.D.N.Y. 1998).
Pressley v. Rich (W.D.N.Y. 2022).
— N.Y. Penal Law § 70.10(b) — 1 case
Seifert v. Keane, 74 F. Supp. 2d 199 (E.D.N.Y 1999).
— N.Y. Penal Law § 70.10(l)(b) — 1 case
McCool v. New York State, 29 F. Supp. 2d 151 (W.D.N.Y. 1998).
— N.Y. Penal Law § 70.10(l)(b)(i) — 1 case
McCool v. New York State, 29 F. Supp. 2d 151 (W.D.N.Y. 1998).
— N.Y. Penal Law § 70.10(l)(b)(iii) — 1 case
McCool v. New York State, 29 F. Supp. 2d 151 (W.D.N.Y. 1998).
— N.Y. Penal Law § 70.10(l)(c) — 2 cases
Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010). “WESLEY, Circuit Judge: Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York’s persistent felony offender statute, N.Y. Penal Law § 70.10 . Each petitioned for a writ of habeas…”
The People v. Clemon Jones, 29 N.E.3d 890 (NY 2015).
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