| People v Sylvester |
| 2020 NY Slip Op 05702 [187 AD3d 522] |
| October 13, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Steven Sylvester, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Megan D. Byrne of counsel), forappellant.
Cyrus R. Vance, Jr. District Attorney, New York (Philip Vyse Tisne of counsel), forrespondent.
Judgment of resentence, Supreme Court, New York County (Juan Merchan, J.), renderedOctober 29, 2019, resentencing defendant, upon his plea of guilty to criminal possession of acontrolled substance in the fourth degree, as a second felony drug offender, to a term of threeyears, unanimously affirmed.
The court properly adjudicated defendant a second felony drug offender based on defendant'sNorth Carolina conviction for breaking and entering and his federal conviction for robbery underthe Hobbs Act (see Penal Law §§ 70.70 [1] [b]; 70.06 [1] [b] [i]).
New York courts use a "strict equivalency" standard to determine if a statute in a foreignjurisdiction qualifies as a predicate felony in New York (People v Helms, 30 NY3d 259, 263 [2017]). Under the strictequivalency standard, courts compare the elements of the foreign crime to the New Yorkequivalent, and not the underlying accusations of the foreign accusatory instrument, and maylook to the case law of the foreign jurisdiction to determine how the elements are to beinterpreted (Helms, 30 NY3d at 264).
A person commits a Hobbs Act robbery when he "obstructs, delays, or affects commerce orthe movement of any article or commodity in commerce, by robbery or extortion or attempts orconspires so to do, or commits or threatens physical violence to any person or property infurtherance of a plan or purpose to do anything in violation of this section" (18 USC§ 1951 [a]). The Hobbs Act statute defines the term "robbery" as "unlawful takingor obtaining of personal property from the person or in the presence of another, against his will,by means of actual or threatened force, or violence, or fear of injury, immediate or future, to hisperson or property, or property in his custody or possession, or the person or property of arelative or member of his family or of anyone in his company at the time of the taking orobtaining" (18 USC § 1951 [b] [1]). The term "extortion" is defined as "theobtaining of property from another, with his consent, induced by wrongful use of actual orthreatened force, violence, or fear, or under color of official right" (18 USC § 1951[b] [2]).
In New York, a "person steals property and commits larceny when, with intent to depriveanother of property or to appropriate the same to himself or to a third person, he wrongfullytakes, obtains or withholds such property from an owner thereof" (Penal Law§ 155.05 [1]). Larceny by extortion, which is also codified as subsections of thesecond and fourth-degree grand larceny statutes, occurs when a defendant "compels or inducesanother person to deliver such property to himself or to a third person by means of instilling inhim a fear that, if the property is not so delivered, the actor or another will: (i) Cause physicalinjury to some person in the future; or (ii) Cause damage to property; or (iii) Engage in otherconduct constituting a crime; or (iv) Accuse some person of a crime or cause criminal charges tobe instituted against him; or (v) Expose a secret or publicize an asserted fact, whether true orfalse, tending to subject some person to hatred, contempt or ridicule; or (vi) Cause a strike,boycott or other collective labor group action injurious to some person's business; except thatsuch a threat shall not be deemed extortion when the property is demanded or received for thebenefit of the group in whose interest the actor purports to act; or (vii) Testify or provideinformation or withhold testimony or information with respect to another's legal claim ordefense; or (viii) Use or abuse his position as a public servant by performing some act within orrelated to his official duties, or by failing or refusing to perform an official duty, in such manneras to affect some person adversely; or (ix) Perform any other act which would not in itselfmaterially benefit the actor but which is calculated to harm another person materially withrespect to his health, safety, business, calling, career, financial condition, reputation or personalrelationships" (Penal Law §§ 155.05 [2] [e]; 155.30 [6]; 155.40 [2]).
As this Court held in People vRobles (115 AD3d 420, 421 [1st Dept 2014], lv denied 23 NY3d 1066 [2014]),a Hobbs Act robbery is equivalent to the crime of larceny by extortion in New York (Penal Law§ 155.05), and a Hobbs Act robbery does not encompass a broader range ofbehavior than larceny by extortion. Contrary to defendant's contention, the intent elements ofeach crime require proof that a defendant intended to commit a larceny, but do not require aspecific intent that defendant intended to instill fear in order to extort; it is sufficient to show thatthe actus reus occurred in tandem with a defendant's intent to commit a larceny (seeUnited States v Garcia-Ortiz, 904 F3d 102, 108 [1st Cir 2018], cert denied 586 US&mdash, 139 S Ct 1208 [2019]; United States v Gray, 260 F3d 1267, 1283 [11th Cir2001], cert denied 536 US 963 [2002]; Penal Law § 155.40 [2]; CJI2d[NY]Grand Larceny 2—Extortion By Most Serious Means). Additionally, both statutes requirea showing that the defendant intended to permanently deprive the victim of property. Federalrobbery statutes are based on common-law robbery, which requires a defendant to seek topermanently deprive a victim of property (see Government of Virgin Is. v Carmona, 422F2d 95, 98 [3d Cir 1970]). Similarly, larceny in New York requires a showing that a defendantintended to permanently deprive another of property (People v Medina, 18 NY3d 98, 105 [2011]).
The North Carolina statute, entitled "Breaking or entering buildings generally,"independently qualifies as a predicate felony offense to justify enhanced sentencing in New Yorkbecause it is equivalent to third-degree burglary. The North Carolina statute provides that aperson is guilty of this crime when he "breaks or enters any building with intent to commit anyfelony or larceny therein" (see NC Gen Stat Ann § 14-54 [a]). New York'sthird-degree burglary statute provides that a person is guilty of a class D felony if a person"knowingly enters or remains unlawfully in a building with intent to commit a crime" (Penal Law§ 140.20). "A person . . . remains unlawfully in or upon premises whenhe is not licensed or privileged to do so" (Penal Law § 140.00 [5] [internalquotation marks omitted]).
Defendant's claims are unavailing (People v Banks, 204 AD2d 473 [2d Dept 1994],lv denied 83 NY2d 1002 [1994]). Contrary to defendant's contention, the act of breakinginto a building without actually entering inside is not a misdemeanor offense in New York whena defendant does so with the intent to commit a crime therein; it is an attempted burglary, a classE felony offense (see People v King, 61 NY2d 550, 555 [1984]; People vCovington, 253 AD2d 711 [1st Dept 1998], lv denied 92 NY2d 981 [1998]; see also People v McFarland, 106AD3d 1129, 1130 [3d Dept 2013], lv denied 22 NY3d 1140 [2014]). Similarly, inNorth Carolina, "breaking" "constitutes any act of force, however slight, employed to effect anentrance through any usual or unusual place of ingress, whether open, partly open, or closed"(State v Noland, 312 NC 1, 13-14, 320 SE2d 642, 650 [1984] [internal quotation marksand citations omitted], cert denied 469 US 1230 [1985]).
Moreover, although the New York statute includes the word "knowingly" and the NorthCarolina statute does not, a prosecutor in North Carolina must nevertheless show that defendantdid not have permission to enter and lacked a good faith belief that he had consent to enter(see State v Laws, 249 NC App 683, 791 SE2d 875 [2016]; State v Blackburn,195 NC App 785, 673 SE2d 883 [2009]).
Finally, defendant's assertion that the North Carolina statute's definition of "building" is moresweeping than New York's definition finds little support in North Carolina. New York defines"building" as hewing to its "ordinary meaning" (see Penal Law § 140.00 [2];see also 150.00 [1]; People vFox, 3 AD3d 577, 578 [2d Dept 2004], lv denied 2 NY3d 739 [2004]).Similarly, courts in North Carolina define a building as a "constructed edifice designed to standmore or less permanently, covering a space of land, usu[ally] covered by a roof and more or lesscompletely enclosed by walls" (State v Gamble, 56 NC App 55, 58, 286 SE2d 804, 806[1982]).
Defendant validly waived his right to appeal (People v Thomas, 34 NY3d 545, 553 [2019], cert denied589 US &mdash, 140 S Ct 2634 [2020]; People v Ramos, 7 NY3d 737, 738 [2006]) foreclosing review ofhis excessive sentence claim, which we reject in any event. Concur—Gische, J.P., Singh,Kennedy, Mendez, JJ.