| People v Jones |
| 2013 NY Slip Op 06122 [109 AD3d 1108] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vClemon Jones, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Monroe County Court (Richard A.Keenan, J.), dated August 26, 2009. The order denied the motion of defendant to setaside his sentence pursuant to CPL 440.20.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order that denied his motion pursuant toCPL 440.20 seeking to vacate the sentence imposed upon his conviction of two counts ofcriminal possession of a forged instrument in the second degree (Penal Law §170.25). We reject defendant's contention that the sentence was "unauthorized, illegallyimposed or otherwise invalid as a matter of law" (CPL 440.20 [1]). Contrary to thecontention of defendant, we conclude that he was properly adjudicated a persistent felonyoffender. With respect to the sufficiency of County Court's order, we agree withdefendant that the court's statement that it denied defendant's motion "for the reasons setforth in the People's response" was insufficient to satisfy the requirements of CPL 440.30(7) (see generally People vIsaacs, 71 AD3d 1162, 1162 [2010]; People v Williams, 184 AD2d 608,608 [1992]; cf. People vWatkins, 79 AD3d 1648, 1648-1649 [2010], lv denied 16 NY3d 800[2011]). We nevertheless conclude that the record is sufficient to enable us tointelligently review the order denying defendant's motion (see People v Dover,294 AD2d 594, 595 [2002], lv denied 98 NY2d 767 [2002]; People vNeely, 219 AD2d 444, 446 [1996], lv denied 88 NY2d 1023 [1996]; seegenerally CPL 470.15 [1]). We therefore decline to hold the matter and to remit it fora statement in accordance with CPL 440.30 (7), particularly in light of the fact that theCounty Court judge who originally heard the motion has since retired (see Dover,294 AD2d at 594).
With respect to the merits, the persistent felony offender statute (Penal Law §70.10), permits a sentencing court to impose the prison term authorized for a class A-1felony (a minimum of 15 to 25 years and a maximum of life) upon a defendant who isconvicted of a felony after having been previously convicted of two or more felonies, asdefined by the statute (see §§ 70.00 [2] [a]; [3] [a] [i]; 70.10 [1] [a];[2]; People v Vincent, 105 AD2d 468, 469 [1984]; see also Griffin vMann, 156 F3d 288, 290-291 [1998]). The statute defines a "previous felonyconviction" as "a conviction of a felony in this state, or of a crime in any otherjurisdiction, provided: (i) [*2]that a sentence to a term ofimprisonment 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 thecommission of the present felony; and (iii) that the defendant was not pardoned on theground of innocence; and (iv) that such conviction was for a felony offense other thanpersistent sexual abuse" (§ 70.10 [1] [b] [emphasis added]). Once it has beendetermined that a defendant is a persistent felony offender, the court may sentencedefendant as such "when it is of the opinion that the history and character of thedefendant and the nature and circumstances of his criminal conduct indicate thatextended incarceration and life-time supervision will best serve the public interest"(§ 70.10 [2]; see Griffin, 156 F3d at 290-291).
Here, it is undisputed that defendant was "sentence[d] to a term of imprisonment inexcess of one year" on each of the two federal convictions at issue (Penal Law §70.10 [1] [b] [i]). Thus, under the plain language of the statute, the federal convictionsqualify as "previous felony conviction[s]" within the meaning of section 70.10 (1) (b)(see People v Griffin, 168 AD2d 972, 972 [1990], lv denied 77 NY2d906 [1991]). Defendant, however, contends that we should impose a requirement thatforeign felonies used to support persistent felony offender status must have a New Yorkequivalent. We reject that contention. Defendant primarily relies upon cases interpretingthe second felony offender statute, which contains a different definition of a predicatefelony (see Griffin, 156 F3d at 290; compare § 70.06 [1] [b] [i]with § 70.10 [1] [b] [i]). Under the second felony offender statute, in orderto constitute a "predicate felony conviction," "[t]he conviction must have been in thisstate of a felony, or in any other jurisdiction of an offense for which a sentence to aterm of imprisonment in excess of one year or a sentence of death was authorizedand is authorized in this state irrespective of whether such sentence wasimposed" (§ 70.06 [1] [b] [i] [emphases added]).
As the Court of Appeals explained in People v Gonzalez (61 NY2d 586[1984]), "[f]or purposes of sentencing [under the second felony offender statute], a priorout-of-State conviction is a predicate felony conviction in New York when the foreignconviction carries with it a sentence of imprisonment in excess of one year and asentence in excess of one year is also authorized for the offense in this State. . . Because New York only permits terms of imprisonment in excess ofone year for felony convictions, the statute requires that the conviction be for a crimewhose elements are equivalent to those of a New York felony" (id. at 589[emphasis added]; see People v Muniz, 74 NY2d 464, 467 [1989]; see also People v Iliff, 96AD3d 974, 975 [2012]).
The persistent felony offender statute, however, contains no language requiring thatthe underlying out-of-state conviction be for a crime that would constitute a felony inNew York, i.e., "an offense for which a sentence to a term of imprisonment in excess ofone year may be imposed" (Penal Law § 10.00 [5]), or that the elements of theforeign crime be equivalent to the elements of a New York crime (see §70.10 [1] [b] [i]). Rather, as noted by the Second Circuit in upholding theconstitutionality of the persistent felony offender statute, "[s]ection 70.10 (1) (b) does notdistinguish among felony convictions that arise under federal, New York State, orout-of-state law. Thus, if the acts constitute a felony under federal or another state'slaw, they will be deemed a felony for purposes of persistent offender status under[s]ection 70.10 even if there is no counterpart felony in New York law. By contrast,under [s]ection 70.06, the underlying acts of a federal or out-of-state felony must berecognized as a felony in New York to qualify as a predicate felony" (Griffin,156 F3d at 290 [emphasis added]; see People v Ortiz, 180 Misc 2d 783, 789[1998]).
Further, the legislative history of the persistent felony offender statute reflects thatthe drafters specifically considered and rejected the contention advanced by defendant(see Griffin, 156 F3d at 291). According to the drafters, "[u]nder theproposed provision a conviction of a 'crime' in any other jurisdiction will becounted, irrespective of whether such crime would have [*3]been a felony in this state. The test would be whetherthe offender was actually imprisoned under a sentence with a term in excess of one yearor under a commuted death sentence. Pursuant to existing law, the test is whether thecrime would have been a felony in New York State. This is an extremely difficult rule toadminister. It involves a myriad of complex distinctions and, moreover, it may oftenmandate rejection of substance for highly technical reasons . . . It is truethat the proposed test permits the court to base a persistent offender sentence upon a priorout of state conviction for an act which, if committed here, would be a misdemeanor orwould not even be a crime. But there is certainly nothing unjust or illogical inpermitting the court to consider the prevailing norms in the jurisdiction where the act wascommitted . . . Moreover, certain serious Federal crimes are not crimesunder the laws of this State. The discretionary feature allows the court to weigh thesubstance of the foreign conviction and consider all of the circumstances. This willprovide fairness to the offender and protection for the public" (Staff Notes of TempSt Commn on Rev of Penal Law and Crim Code, 1964 Proposed NY Penal Law [StudyBill, 1964 Senate Intro 3918, Assembly Intro 5376] § 30.10 at 285 [emphasesadded]).
Although defendant cites several cases from the Third Department that support hiscontention that foreign felonies used to support persistent felony offender status musthave a New York equivalent (see People v Trudo, 153 AD2d 993, 994-995[1989]; People v Gill, 109 AD2d 419, 420-422 [1985]; see also People vMorton, 48 AD2d 58, 59-60 [1975]), we decline to follow those cases. The ThirdDepartment cases trace back to Morton (48 AD2d at 59), in which that court heldthat a former version of the second felony offender statute—Penal Law §70.06 (former [1] [b] [i])—was unconstitutional as applied to the defendantbecause it denied him equal protection and resulted in the delegation of legislativeauthority to other jurisdictions in violation of article III, § 1 of the New York StateConstitution. That version of the statute provided in pertinent part that, "to be a predicatefelony, a prior conviction in a jurisdiction other than New York must have been for anoffense for which a term of imprisonment in excess of one year or a sentence of deathwas authorized, irrespective of whether such sentence was imposed" (Morton, 48AD2d at 59-60; see People v Parker, 41 NY2d 21, 23 n 2 [1976]). The ThirdDepartment reasoned that the application of that definition would deprive defendantswith prior out-of-state convictions of equal protection because, if those defendants wereconvicted of "unusual" or arcane crimes in other jurisdictions, such as vagrancy orblasphemy, the former version of the second felony offender statute would mandatesecond felony offender status for defendants later convicted of a New York felony(Morton, 48 AD2d at 60). According to the court, that result "would be purelyarbitrary and without a basis in reason," and the court noted that, "had defendantfortuitously performed these very same earlier acts in the State of New York, he wouldstill be entitled to first offender status upon his sentencing for his subsequent New Yorkfelony conviction" (id.). The Third Department thus declared Penal Law §70.06 unconstitutional "insofar as it provides that the extent of punishment for aconvicted New York felon is dependent upon the authorized sentence for an offense ofwhich he has previously been convicted in another jurisdiction" (id.).
After Morton, Penal Law § 70.06 was amended to include languagerequiring that the foreign predicate conviction must be for acts that would constitute afelony under New York law (L 1975, ch 784, § 1; see Parker, 41 NY2d at27). Shortly thereafter, however, the Court of Appeals in Parker (41 NY2d at 24)effectively overruled Morton, holding that former subdivision (1) of section70.06 of the Penal Law was constitutional as applied to the defendant, and that theamendment was not "constitutionally mandated" (id. at 27). Specifically, theCourt of Appeals held that "the imposition of second felony offender status uponindividuals convicted in other jurisdictions of crimes which in such other jurisdictionswarrant [a] sentence of imprisonment in excess of one year is rationally related to thevalid governmental aim of treating habitual offenders more severely than first timeoffenders" (id. at 25). The Court reasoned that "[t]he [l]egislature, in enacting thechallenged provision, exercised its considered judgment to [*4]provide that the seriousness of a crime should bedetermined by the severity of the sentence and the norms prevailing in the jurisdiction inwhich a crime was committed . . . The possible disparity of treatmentbetween prior New York offenders vis-à-vis prior out-of-State offenders does notvitiate the legislative decision that an individual who has previously elected to violate thecriminal standards of the society in which he [or she] was found should be treated as anhabitual offender" (id. at 26).
In sum, under the clear and unambiguous language of Penal Law § 70.10 (1)(b) (i), a "previous felony conviction" for purposes of the persistent felony offenderstatute includes "a crime in any other jurisdiction, provided . . . that asentence to a term of imprisonment in excess of one year . . . was imposedtherefor." Here, defendant was convicted in federal court of twocrimes—knowingly making false statements on a Bureau of Alcohol, Tobacco &Firearms form (18 USC § 924 [a] [1] [A]) and being a convicted felon inpossession of a firearm (18 USC § 922 [g])—and a sentence ofimprisonment of 18 months was imposed for each conviction. Inasmuch as "defendantreceived a sentence in excess of one year on each of [the federal] convictions[,] theywere properly considered for persistent felony offender adjudication" (Griffin,168 AD2d at 972). We therefore affirm the denial of defendant's motion to set aside hissentence. Present—Scudder, P.J., Peradotto, Carni, Valentino and Whalen, JJ.