Sullivan, J. P., and Rubin, J., dissent in a memorandum by Rubin, J., as follows: The only meritorious issue presented by this appeal is whether a conviction which is more than 10 years old can be the basis for sentencing as a second violent felony offender (Penal Law § 70.04) where the sentence imposed upon a subsequent, unrelated conviction, which resulted in the exclusion of a period of incarceration from the calculation of the statutory 10-year period, was later vacated and the indictment dismissed.
Defendant was sentenced as a second violent felony offender predicated upon a December 28, 1972 conviction for second degree robbery. In computing the 10-year statutory period of Penal Law § 70.04 (1) (b) (v), Supreme Court excluded the period of time from September 10, 1979 to November 17, 1982, during which defendant was incarcerated on an unrelated *224charge, even though that sentence was later vacated and the indictment dismissed upon the People’s motion (see, Dozier v State of New York, 134 AD2d 759, 760-761).
The New York predicate felony offender statutes provide for enhanced punishment if, within 10 years of the commission of a felony or violent felony for which the defendant stands convicted, he was sentenced for an offense which would constitute a felony (Penal Law § 70.06 [1] [b]) or a violent felony (Penal Law § 70.04 [1] [b]) if committed in this State. Excluded from the statutory 10-year period is "any period of time during which the person was incarcerated for any reason” (Penal Law § 70.04 [1] [b] [v]; § 70.06 [1] [b] [v] [emphasis added]). A defendant is entitled to a hearing, the procedure for which is set forth in CPL 400.15 and its parallel provision, CPL 400.21 (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 400.15, at 218). After the hearing, "the court must make a finding as to whether or not the defendant has been subjected to a predicate violent felony conviction” (CPL 400.15 [7] [c]). Prior to the hearing, the defendant must be given a statement listing (1) each alleged predicate violent felony conviction and (2) "each period of incarceration to be used for tolling of the ten year limitation” of Penal Law § 70.04 (1) (b) (iv) (CPL 400.15 [2]). In dispute on this appeal is the scope to be accorded to the provision that a prior conviction obtained in violation of the defendant’s rights under the United States Constitution "must not be counted in determining whether the defendant has been subjected to a predicate violent felony conviction” (CPL 400.15 [7] [b]).
This issue was addressed by the Court of Appeals in People v Love (71 NY2d 711, 716-717) in which it observed, "To the extent that the statutory scheme reveals the Legislature’s purpose, it appears that the Legislature intended that a person convicted of a crime should not be treated as a repeat offender for an old conviction or simply because in the last 10 years he was unconstitutionally convicted and deprived of his liberty.” The ruling left unanswered the question of whether a conviction which is invalidated upon other than constitutional grounds may toll the 10-year statutory period applicable to predicate felony convictions. The Appellate Division, Second Department, relying on People v Love (supra), held that "the 10-year statutory period may not be extended by taking into account the period of time during which a defendant was incarcerated upon a conviction which was later reversed and declared to be invalid. Just as an unconstitutionally obtained conviction cannot support a predicate felony offender adjudica*225tion, neither should the sentence imposed, and the time served, upon an invalid conviction extend the 10-year limitation and be used to enhance punishment for another offense” (People v Beard, 143 AD2d 101,102).
I do not agree. It was the Appellate Division, Second Department which articulated the reasoning behind the statutory provisions of Penal Law §§ 70.04 and 70.06 in People v Orr (57 AD2d 578), stating, "The tolling provision for periods of incarceration contained in section 70.06 of the Penal Law constitutes a rational exercise of legislative judgment. A prior felon can properly be required to demonstrate that he can function in society in a law-abiding manner for a 10-year period in order to avoid being sentenced as a recidivist.” As the purpose of the second felony offender statute was more recently stated by Justice Sullivan, "It was not intended to punish an individual for his past conduct, but, rather, to enhance the sentences applicable to a predicate felon who fails to demonstrate that he can function in society in a law-abiding manner for a 10-year period” (People v Bell, 138 AD2d 298, 300 [Sullivan, J., dissenting], mod 73 NY2d 153). In reinstating the second felony offender adjudication in that case, the Court of Appeals expressly adopted the reasoning stated in Justice Sullivan’s dissenting memorandum (73 NY2d 153, 165, supra).
The Legislature clearly realized that, while an offender is incarcerated, the opportunity to exhibit antisocial behavior is severely limited. An individual may be a model prisoner but, upon release, prove to be a menace to the community. The tolling provision of the recidivist statute recognizes that a prisoner’s conduct while under confinement may reveal little about his capacity to function while at liberty in society.
A careful distinction must be observed between the use of a prior conviction as a predicate felony for the purpose of enhancing sentence and the use of a period of incarceration for the purpose of tolling the 10-year statutory period. To constitute a predicate felony, a conviction must be both constitutionally obtained and upheld upon appeal. But to be utilized to toll the statutory period, incarceration may be "for any reason” (Penal Law § 70.04 [1] [b] [v]). This language is plain and is not controverted by any other provision of the Penal Law. Therefore, it should be broadly construed (McKinney’s Cons Law of NY, Book 1, Statutes § 76; People v Love, 129 AD2d 258, 260, affd 71 NY2d 711, supra). Given the purpose of the second felony offender statute—"to enhance the sentences applicable to a predicate felon who fails to demonstrate that *226he can function in society in a law-abiding manner for a 10-year period” (People v Bell, 138 AD2d 298, 300, supra)—and in the absence of a clear indication of a legislative intent to the contrary, the statutory requirement that "any period of time during which the person was incarcerated for any reason” shall be excluded in calculating the 10-year period (Penal Law § 70.04 [1] [b] [v] [emphasis added]) should not be rewritten by judicial fiat.
The broad scope given to the tolling provision must, of course, be limited to the extent that it suffers from any constitutional infirmity. In People v Love (71 NY2d 711, 716, supra), the Court of Appeals stated, in dictum, "when the statute says that incarceration 'for any reason’ extends the limitations period, it contemplates at least that the defendant has not been imprisoned without reason or unconstitutionally”. The court made it clear, however, that it was not interpreting the tolling provision on constitutional grounds (supra, at 715). Indeed, the cases cited in the opinion stand only for the proposition, contained in CPL 400.15 (7) (b), that an unconstitutionally obtained conviction cannot be used as a predicate felony, not that it cannot serve to toll the statutory 10-year period (Burgett v Texas, 389 US 109, 115; People v Harris, 61 NY2d 9, 16).
In People v Catalanotte (72 NY2d 641, cert denied — US —, 110 S Ct 55), the limitation period was held to be tolled by a period of incarceration resulting from a conviction which was obtained in accordance with a defendant’s constitutional rights, as those rights were judicially construed at the time of conviction, but contrary to those rights as construed at the time the motion to vacate his conviction was pending. In Catalanotte, the Court of Appeals noted that People v Love (supra) "is clearly distinguishable. In that case the defendant’s prior conviction was vacated because it was obtained in violation of his constitutional rights under the law that existed at the time of the conviction. Here, defendant’s constitutional rights, as then defined, were respected in full” (72 NY2d 641, 647, supra).
While the provisions of CPL 400.15 make only casual reference to the tolling provision of the pertinent recidivist statute (Penal Law § 70.04 [1] [b]), the provisions of the parallel statute (CPL 400.21) have been applied by the Court of Appeals to preclude the use of unconstitutionally obtained convictions to toll the statutory period (People v Love, supra; see also, People v Catalanotte, supra). The court has not applied the Criminal Procedure Law provisions (CPL 400.15 and the *227parallel provisions of CPL 400.21) to preclude the use of convictions vacated for other than constitutional reasons to toll the statutory period. In my view, the holding of the Appellate Division, Second Department in People v Beard (143 AD2d 101, supra), upon which the majority rely, is an unwarranted extension of People v Love (supra) to a situation which is clearly beyond the scope of CPL 400.15 or 400.21.
As to the severity of defendant’s sentence, it was imposed pursuant to a negotiated plea, and he should not be heard to complain that he has received precisely what he bargained for (People v Chambers, 123 AD2d 270). Given defendant’s substantial criminal record and his most recent conviction for a series of knifepoint robberies, I perceive no abuse of discretion which would warrant a reduction in sentence (People v Farrar, 52 NY2d 302, 305).
Accordingly, the judgment of the Supreme Court should be affirmed.