"There are offenders who make criminal careers specializing in misdemeanors. After a certain point, the most appropriate way to deal with that criminal is to treat the next offense as a felony," District Attorney Daniel Donovan said. "When someone constantly reoffends, regardless of whether the crime is a felony or misdemeanor, the penalties should increase." It was mainly low-level stuff -- drugs and trespassing came up a lot -- but when the 55-year-old went in front of the judge on the new trespassing charge, prosecutors had had enough. They asked for a year in jail on the misdemeanor.
"We were shocked that the DA's office objected when the judge indicated he was going to give Mr. Earl 30 days," said attorney Irwin Shaw, who heads the Manhattan criminal defense practice of the Legal Aid Society. "Because the complaint they drew up alleges he was sleeping on the rooftop."
Earl also has a spot on the Manhattan district attorney's list of the borough's 12 worst repeat misdemeanor offenders, a revolving door of mostly small-timers who clog an already backlogged court system. District Attorney Cyrus Vance said more than 2,000 people whom he calls "career misdemeanants" have been convicted of eight or more misdemeanors or higher-level crimes between 2005 and 2010.
Prosecutors want state legislation that would automatically turn a certain number of misdemeanor convictions into a felony calling for prison time or court-ordered programs to try and stop the repeating crime cycle. Federal authorities have a similar tool with enhancement factors for repeat offenses, including misdemeanors.
Eight other states have varying statutes that raise penalties for habitual or repeat misdemeanor offenders, according to the National Conference of State Legislatures. They include Arizona, Connecticut, Florida, Maryland, Missouri, Ohio, Texas and Wisconsin.
On Staten Island, these career petty criminals regularly graduate to more serious crimes. One man, Anthony Flynn, who made it on District Attorney Daniel Donovan's "Dirty Dozen" list of misdemeanor offenders, racked up 26 arrests and 16 misdemeanor convictions in three years, according to Peter N. Spencer, a spokesman for Donovan.
Flynn made the jump to bank robbery in 2009, and his latest heist last December landed him a three and a half to seven-year prison term.
Another Staten Island career criminal, Henchausti Martinez, notched 43 arrests before his 41st birthday. Many of those arrests have been for petty offenses, the kind of crimes that don't bring lengthy prison sentences, but he's also served state time on felony convictions. He's currently behind bars awaiting prosecution on grand larceny and auto stripping charges.
"There are offenders who make criminal careers specializing in misdemeanors. After a certain point, the most appropriate way to deal with that criminal is to treat the next offense as a felony," Donovan said. "When someone constantly reoffends, regardless of whether the crime is a felony or misdemeanor, the penalties should increase."
The State District Attorney Association proposed similar legislation when Donovan served as the group's president.
New York's Division of Criminal Justice Services data show 10,650 individuals convicted of five or more crimes across the state over the past three years, with one rapid repeater notching 51 convictions including six felonies since 2008, his latest in the Bronx. New York City altogether accounted for 8,824 of the repeaters, more than 80 percent.
Most are drug crimes, larcenies and thefts. DCJS Acting Commissioner Sean Byrne began posting the list of persistent offenders last year on a secure law enforcement website, updating it every three months. He urged prosecutors and police to monitor and make sure judges know them and to request high bail or jail time.
In the first year, the list declined from about 11,500. Byrne said it's no coincidence. "You get people to focus on their persistent offender population, and by focusing on it you conceivably take them out of circulation."
New York Civil Liberties Union Executive Director Donna Lieberman said proposed legislation to crack down on repeat offenders is a poor move toward more incarceration instead of rehabilitation. New York City has increased marijuana misdemeanor arrests tenfold in the past decade, with a disproportion of blacks and Latinos arrested, and they would also be the losers here, she said.
And defense lawyers said ramping up prison time for low-level crimes could have an unintended consequence, increasing court backlogs as more defendants decline to plead guilty to dispose of their cases.
Bills were introduced in the Senate and Assembly in January: One increases the penalties for a Class A misdemeanor after three misdemeanor convictions within 10 years, and another stiffens the penalty if there are five other misdemeanors within five years. Both were referred to committees. Neither has advanced.
Vance proposes eight misdemeanors in five years rising to a felony. He said that gives judges more tools for ordering supervision and services or longer jail time.
Byrne has also asked prosecutors and police to check whether persistent offenders' DNA is in the state data bank, which is checked against crime scene DNA. Samples are required from people convicted in New York of felonies and selected misdemeanors. Some prosecutors have begun requiring it as a condition of plea bargains to lesser crimes.
A DCJS study of 2009 data showed 89 percent of suspects arrested for a felony had a prior misdemeanor conviction.
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