| People v Helms |
| 2016 NY Slip Op 05463 [141 AD3d 1138] |
| July 8, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMarlo S. Helms, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Leah R. Mervine of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Victoria M. Argento, J.),rendered February 14, 2013. The judgment convicted defendant, upon his plea of guilty,of attempted criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is modified on the law byvacating the sentence and as modified the judgment is affirmed, and the matter isremitted to Monroe County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon hisplea of guilty of attempted criminal possession of a weapon in the second degree (PenalLaw §§ 110.00, 265.03 [3]). We agree with defendant that he wasimproperly sentenced as a second violent felony offender inasmuch as the predicateconviction, i.e., the Georgia crime of burglary, is lacking an essential element required bythe equivalent New York statute (cf. People v Toliver, 226 AD2d 255, 256[1996], lv denied 88 NY2d 970 [1996]; People v Thompson, 140 AD2d652, 654 [1988]).
Defendant pleaded guilty to burglary in 1999, at which time the Georgia burglarystatute provided that "[a] person commits the offense of burglary when, without authorityand with the intent to commit a felony or theft therein, he enters or remains within thedwelling house of another" (Ga Code Ann former § 16-7-1 [a]). Theequivalent New York burglary statute provides that "[a] person is guilty of burglary. . . when he knowingly enters or remains unlawfully in a buildingwith intent to commit a crime therein, and when . . . [t]he building is adwelling" (Penal Law § 140.25 [2] [emphasis added]). Thus, on its face, theGeorgia statute is lacking an essential element—knowledge that the entryor decision to remain is unlawful. Because New York law requires proof of an elementthat Georgia law does not, defendant's Georgia conviction cannot serve as a predicate (see generally People v Ramos,19 NY3d 417, 420 [2012]).
We must remind our dissenting colleague of the recent decision of the Court ofAppeals reciting the general rule that the inquiry into whether a foreign state's convictionshould be used as a predicate is limited " 'to a comparison of the crimes' elementsas they are respectively defined in the foreign and New York penal statutes' " (People v Jurgins, 26 NY3d607, 613 [2015], quoting People v Muniz, 74 NY2d 464, 467-468 [1989]).Although it is a requirement that a person act intentionally in order to be convicted ofburglary in Georgia, the fact remains that the element of acting "knowingly" is notincluded in the statute. We note that the First Department was referring to affirmativedefenses in Toliver when it stated that the Georgia code included "expressstatutory provisions, requiring acquittal where 'intention' [was] lacking (Ga Code Ann[ ]§ 16-2-2) or where the otherwise unlawful act or omission [was] justifiedby the defendant's 'misapprehension of fact' (Ga Code Ann[ ] § 16-3-5)"(Toliver at 256). Those provisions, however, plainly are not elements of burglaryin Georgia. Thus, in view of the statement in Ramos that a foreign statute isstrictly equivalent only when it contains the "essential" elements of a comparable NewYork statute (Ramos at 419), the lack of knowledge element in the Georgiaburglary [*2]statute renders defendant's prior convictioninsufficient for the purpose of sentencing him as a predicate felon.
In addition, we note that the Georgia legislature has included a knowing requirementin other crimes. By way of example, the Georgia statute for criminal trespass states that"[a] person commits the offense of criminal trespass when he or she knowingly andwithout authority . . . [e]nters upon the land or premises of another person. . . for an unlawful purpose" (Ga Code Ann § 16-7-21 [b][1]). Based on general rules of statutory construction, we may not read "knowingly" intothe burglary statute. Indeed, "[a] court cannot by implication supply in a statute aprovision which it is reasonable to suppose the Legislature intended intentionally to omit;and the failure of the Legislature to include a matter within the scope of an act may beconstrued as an indication that its exclusion was intended" (McKinney's Cons Laws ofNY, Book 1, Statutes § 74). Thus, in our view, the Georgia legislature'sfailure to include such a requirement in this statute requires a finding that such element isnot part of the crime.
While we agree with the dissent that Georgia case law indicates that criminal trespassis a lesser included offense of burglary (see Waldrop v Georgia, 300 Ga App 281,284, 684 SE2d 417, 420 [2009]), we cannot assume from this that "knowingly" must bean element of the greater offense. To do so would move our analysis much past therequired direct comparison of the elements of the crimes that is mandated by the Court ofAppeals. In any event, the dissent has failed to present any Georgia case law specificallyreading the "knowingly" requirement into the Georgia burglary statute. We thereforemodify the judgment by vacating the sentence, and we remit the matter to County Courtto resentence defendant (seePeople v Nieves-Rojas, 126 AD3d 1373, 1373-1374 [2015]).
All concur except Curran, J., who dissents and votes to affirm in the followingmemorandum.
Curran, J. (dissenting). I respectfully dissent and would vote to affirm the judgment,following the decision of the First Department in People v Toliver (226 AD2d255 [1996], lv denied 88 NY2d 970 [1996]), which relies on, inter alia, itsdecision in People v Hall (158 AD2d 69 [1990], lv denied 76 NY2d 940[1990], reconsideration denied 76 NY2d 1021 [1990]).
Pursuant to New York's " 'strict equivalency' standard" for determiningwhether foreign felonies can serve as a basis for enhanced sentencing (People v Ramos, 19 NY3d417, 418 [2012]; see People v Gonzalez, 61 NY2d 586, 589 [1984]), ourinquiry is generally "limited to a comparison of the crimes' elements as they arerespectively defined in the foreign and New York penal statutes" (People v Yusuf, 19 NY3d314, 321 [2012], quoting People v Muniz, 74 NY2d 464, 467-468 [1989]). Irespectfully disagree with the majority's mechanical application of this standardinasmuch as the Court of Appeals routinely looks to the foreign state's statutorydefinitions and to case law from that state (see People v Jurgins, 26 NY3d 607, 614-615 [2015];Ramos, 19 NY3d at 419-420; Gonzalez, 61 NY2d at 589, 591-592). Therestriction on this standard, i.e., that the courts generally "may not consider theallegations contained in the accusatory instrument underlying the foreign conviction"(Jurgins, 26 NY3d at 613, citing People v Olah, 300 NY 96, 98 [1949]),is intended to avoid "abuse," "impossibility of administration," and the relitigation offacts settled by the foreign judgment (People ex rel. Newman v Foster, 297 NY27, 30 [1947]). As demonstrated by the Court of Appeals, there is no prohibition of aninterpretative analysis of the foreign state's statutes and case law.
In August 1999, defendant pleaded guilty to the Georgia felony of "residentialburglary" (Ga Code Ann former § 16-7-1) and was sentenced to a term of10 years' imprisonment. According to the record, defendant pleaded guilty to one countof burglary alleging that, "without authority and with intent to commit a felony, to-wit:Aggravated Assault . . . , [defendant] did enter [a] dwelling house."
The applicable Georgia statute provided that "[a] person commits the offense ofburglary when, without authority and with the intent to commit a felony or theft therein,he enters or remains within the dwelling house of another" (Ga Code Ann former§ 16-7-1 [a]). The term "without authority" is defined as "without legalright or privilege or without permission of a person legally entitled to withhold the right"(§ 16-1-3 [18]).
The equivalent New York statute is burglary in the second degree, which iscommitted [*3]when a person "knowingly enters orremains unlawfully in a building with intent to commit a crime therein, and when. . . [t]he building is a dwelling" (Penal Law § 140.25 [2]). "Aperson 'enters or remains unlawfully' in or upon premises when he is not licensed orprivileged to do so" (§ 140.00 [5]). "A person acts knowingly with respectto conduct or to a circumstance described by a statute defining an offense when he isaware that his conduct is of such nature or that such circumstance exists"(§ 15.05 [2]).
As the majority correctly points out, the New York statute contains the word"knowingly" whereas the Georgia statute does not. However, I respectfully disagree withthe majority that this distinction amounts to a difference in the "elements" of the crime ofburglary under the respective state statutes. Since 1965, when the Penal Law wassubstantially updated and recompiled, New York's burglary statute has been structuredwith "two basic elements . . . (1) unlawfully entering or remaining inpremises, and (2) intent to commit a crime therein" (3d Interim Rpt of Temp St Commnon Rev of Penal Law and Crim Code, 1964 NY Legis Doc No. 14 at 23). As part of theserevisions, the Penal Law also adopted four levels of culpable mental state (intentionally,knowingly, recklessly and negligently), as "borrow[ed]" from Model Penal Code§ 2.02 (William C. Donnino, Practice Commentary, McKinney's Cons Lawsof NY, Book 39, Penal Law § 15.00 at 83). The culpable mental state of"knowingly" relates to the conduct embodied in the first element of the crime of burglary,i.e., entering or remaining unlawfully (see Penal Law § 15.15[1]).
The Georgia burglary statute, similar to the New York statute, contains two basicelements: (1) "without authority . . . he enters or remains within thedwelling house of another"; and (2) "with the intent to commit a felony or theft therein"(Ga Code Ann former § 16-7-1 [a]). These are the same two basic elementsset forth in the Model Penal Code (see Model Penal Code § 221.1,"Explanatory Note for Sections 221.1 and 221.2" ["Section 221.1 proscribes as burglaryan unprivileged entry into a building or occupied structure with intent to commit a crimetherein"]). They also are consistent with the "generic" definition for burglary applied tothe federal predicate violent felony statute (18 USC § 924 [e]; seeTaylor v United States, 495 US 575, 592, 598-599 [1990]).
In my view, the majority is comparing words in the two burglary statutes rather thanelements. It is a form over substance approach that I cannot accept is required by the"strict equivalency" test. While the strict equivalency test may involve" 'technical distinctions' " (Ramos, 19 NY3d at 419), this doesnot mean that the test is premised solely on verbiage and without an analysis ofsubstantive law.
Furthermore, by concluding that the Georgia statute lacks a mens rea requirement forthe element of "without authority . . . he enters or remains within thedwelling house of another," the majority has determined that Georgia's burglary statutelacks "a culpable mental state on the part of the actor . . . with respect toevery material element of an offense," as is required under New York law (Penal Law§ 15.10). In other words, the burglary of which defendant was convicted inGeorgia is not even a crime in New York, let alone a felony. Moreover, by logicalextension, the majority has concluded that, because there is no culpable mental state foran element of the crime in Georgia, the Georgia law must be a strict liability statute, adetermination that has no support in Georgia law.
Just as we must draw from article 15 of the Penal Law to identify principles ofcriminal liability and culpability, and the definition of "knowingly" (§ 15.05[2]), we should do the same for Georgia law (Ga Code Ann, ch 2, § 16-2-1et seq.). Under Georgia law, burglary is a "crime," which is defined as "aviolation of a statute of this state in which there is a joint operation of an act or omissionto act and intention or criminal negligence" (§ 16-2-1 [a]). Further,Georgia's principles of criminal culpability specify that "[t]he acts of a person of soundmind and discretion are presumed to be the product of the person's will but thepresumption may be rebutted" (§ 16-2-4), and "[a] person of sound mindand discretion is presumed to intend the natural and probable consequences of his actsbut the presumption may be rebutted" (§ 16-2-5). Thus, the "act" of enteringunder Georgia's burglary statute is only a "crime" if it was "intentional." This statutoryinterpretation is substantiated by Georgia case law.
[*4] In Price v Georgia (289 Ga 459, 459, 712SE2d 828, 829 [2011]), the Georgia Supreme Court held that a criminal conviction mustbe reversed due to a failure to charge the jury with the mistake of fact defense in aburglary trial. The defendant claimed that he believed the house in which he was foundwas for sale and he therefore was authorized to enter it. The court held that, because hisdefense was based on a mistake of fact that, if true, would negate an essential element ofthe crime, the defendant was entitled to a jury charge in that respect (see Price,289 Ga at 460, 712 SE2d at 830). This, in my view, implies that there is a mens reaelement of at least "knowing" for the unauthorized entry into the house. If theunauthorized nature of the entry was, in effect, a strict liability element, then thedefendant's defense that he believed the house was for sale and that he was authorized toenter would be inconsequential to his guilt or innocence. Consequently, no mistake offact defense would need to be charged (see Ga Code Ann § 16-3-5).Furthermore, in Georgia, the mistake of fact defense has been held to apply to burglarywhen it " 'negates the existence of the mental state required to establish amaterial element of the crime' " (Stillwell v Georgia, 329 Ga App 108,110, 764 SE2d 419, 422 [2014] [emphasis added]). Thus, by requiring a mistake of factjury charge where a defendant's assertions make the issue relevant, the Georgia courtshave recognized the mens rea requirement embodied in the Georgia burglary statute.
I see no substantive difference between the burglary statutes in New York andGeorgia with regard to the necessity of a mens rea requirement for entering or remainingwithout authority. Whether the People must prove a knowing entry without authority inNew York, or the State must prove an intentional entry without authority in Georgia, theprosecution is required in both states to prove the defendant's culpable state of mindbeyond a reasonable doubt (see CPL 70.20; Ga Code Ann§ 16-1-5). Although it concedes that intent is required to be convicted ofburglary in Georgia, the majority has not addressed any difference it perceives in the"knowingly" requirement in New York law and the "intentional" requirement in Georgialaw. Whether under the traditional view defining intent to include knowledge, or underthe modern view where the "failure to distinguish between intent (strictly defined) andknowledge is . . . of little consequence" (Wayne R. LaFave, SubstantiveCriminal Law § 5.2 [b] [2d ed 2015]), the majority's failure to explain thedifference may indicate that there is in fact no distinction to be made.
Further, because the mens rea requirement for a knowing unlawful entry is typicallysatisfied by circumstantial evidence (see People v Daniels, 8 AD3d 1022 [2004], lvdenied 3 NY3d 705 [2004]), it is generally acknowledged that a "defendant's state ofmind in respect to whether he or she knew that his or her entry of the premises waswithout the consent of the person in lawful possession is irrelevant where the defendantmakes no assertion that he or she assumed he or she had consent or that he or shepurported to be acting under legal authority" (12A CJS, Burglary § 32,citing Hanson v Wisconsin, 52 Wis 2d 396, 402, 190 NW2d 129, 133 [1971]).The difference the majority tries to identify between New York law and Georgia law isimmaterial because the mens rea requirement of an unlawful entry is typically met by thecircumstantial evidence surrounding the unlawfulness, and the mens rea is irrelevantunless the defendant introduces evidence to negate it. It is therefore not surprising thatthe majority does not describe any practical difference between a burglary in New Yorkand a burglary in Georgia to illustrate a substantive distinction between the states' lawson burglary. Moreover, in my view, it is for this reason that the First Department inToliver referenced the Georgia affirmative defenses, inasmuch as the mens reaissue for entering or remaining unlawfully does not arise until the defendant raisesit.
Additionally, under Georgia law, criminal trespass is a lesser included offense ofburglary (see Waldrop v Georgia, 300 Ga App 281, 284, 684 SE2d 417, 420[2009]). Georgia law includes a "knowing" requirement for its criminal trespass offense,and thus a "knowing" requirement must be a part of the greater offense of burglarybecause it is included within the lesser offense of criminal trespass (Ga Code Ann§ 16-7-21 [b] [1]). Stated alternatively, under Georgia law, a defendant in aburglary prosecution is not entitled to a jury charge for the lesser included trespassoffense when the defendant asserts that he or she believed that the entry into the structurewas lawful (see Sanders v Georgia, 293 Ga App 534, 536, 667 SE2d 396,398-399 [2008]; Moore v Georgia, 280 Ga App 894, 898, 635 SE2d 253, 258[2006]). Thus, trespass is only a lesser included offense of burglary when the defendantknew his or her entry was unlawful. It is only logical, therefore, that under Georgia law adefendant convicted of burglary must have known his or her entry wasunlawful.
[*5] The definition of a lesser includedoffense in Georgia is one that is "included in a crime charged in the indictment" and "isestablished by proof of the same or less than all the facts or a less culpable mental statethan is required to establish the commission of the crime charged" (Ga Code Ann§ 16-1-6). Inasmuch as the "mental state" for an unlawful entry to constitutetrespass is "knowing," and such a "mental state" logically cannot be "lessculpable" than is required for an unlawful entry in the burglary statute, the "culpablemental state" for an unlawful entry for both trespass and burglary must either be the sameor the "culpable mental state" for burglary must be greater than what is requiredunder the trespass statute (i.e., an "intention" to "act" [§ 16-2-1 (a)]).
Finally, focusing solely on the word "knowingly" and determining that the absenceof that word in a foreign state's criminal statute negates the mens rea requirement for acrime may have significant further ramifications for application of our predicate felonystatute because only about half of the states have adopted the culpable mental states NewYork borrowed from the Model Penal Code (Darryl K. Brown, Criminal Law Reformand the Persistence of Strict Liability, 62 Duke LJ 285, 294-295 [2012]). In my view,under the majority's analysis, we are determining that approximately half of the stateslack a critical mens rea requirement for their burglary statutes and that none is a crimeunder New York law. This is an unacceptable conclusion, both conceptually andpractically.
For all of these reasons, I respectfully dissent. Present—Smith, J.P., Centra,DeJoseph, Curran and Scudder, JJ.