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PEOPLE v. CAGLE

7 N.Y.3d 647 (2006)

860 N.E.2d 51

826 N.Y.S.2d 589

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STERLING A. CAGLE, Appellant.

Court of Appeals of New York.

Decided November 20, 2006.

Attorney(s) appearing for the Case

Frank J. Nebush, Jr., Public Defender, Utica (Robert R. Reittinger of counsel), for appellant.

Michael A. Arcuri, District Attorney, Utica (Steven G. Cox of counsel), for respondent.

Judges CIPARICK, ROSENBLATT, GRAFFEO and READ concur with Chief Judge KAYE; Judge SMITH dissents in a separate opinion; Judge PIGOTT taking no part.

OPINION OF THE COURT

Chief Judge KAYE.

A second felony offender subject to enhanced punishment is one whose sentence for a prior felony has been imposed not more than 10 years before the commission of the felony for which that person presently stands convicted; excluded from the 10 years are any periods during which the individual has been incarcerated (Penal Law § 70.06 [1] [b] [v]). This appeal asks whether defendant was "incarcerated" while serving...

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