Opinion
No. 4626/2013.
08-15-2014
The PEOPLE of the State of New York, v. Shawn GILL, Defendant.
Scott Rosenberg, Esq., Rebecca Chevalier, Esq., Michelle Fox, Esq ., The Legal Aid Society, New York, for Defendant. Kristen Baraiola, Esq., Assistant District Attorney, New York County District Attorney's Office, New York, for the People.
Scott Rosenberg, Esq., Rebecca Chevalier, Esq., Michelle Fox, Esq ., The Legal Aid Society, New York, for Defendant.
Kristen Baraiola, Esq., Assistant District Attorney, New York County District Attorney's Office, New York, for the People.
JUAN M. MERCHAN, J.
Background
On October 23, 2013, Defendant was indicted by a New York County grand jury for the crimes of Criminal Mischief in the Third Degree in violation of Penal Law (hereinafter “P.L.”) § 145.05(2) and Criminal Mischief in the Fourth Degree in violation of P.L. § 145.00(1). On November 15, 2013, the Defendant's case was referred to the Manhattan Mental Health Court (hereinafter “MMHC”). On March 21, 2014, Defendant entered into a MMHC agreement, in which he pled guilty to both counts in the indictment, with a promised sentence of 1½ to 3 years incarceration if Defendant failed to complete the MMHC program. The sentence was held in abeyance to give Defendant an opportunity to complete and graduate from the MMHC program. The plea agreement also provided that upon successful completion of the program as determined by the Court, the People would join in Defendant's motion to dismiss the top count in the indictment, a felony, in the interest of justice, leaving only the A misdemeanor of Criminal Mischief in the Fourth Degree under P.L. § 145.00(1), with a promised sentence of time served.
At the time Defendant entered into the plea agreement, the People filed and served a Statement of Predicate Felony Conviction (hereinafter “the statement”) pursuant to Criminal Procedure Law (hereinafter “C.P.L.”) § 440.21 and P.L. § 70.06. The statement listed a conviction from January 29, 2009, in the state of Virginia, for the crime of Unlawful Wounding in violation of Virginia Code § 18.2–51.
Defendant subsequently violated the conditions of the MMHC plea agreement on multiple occasions, most recently on or about July 31, 2014, when he absconded from his inpatient treatment facility. As a result, the case was adjourned to August 15, 2014, for sentencing. On July 12, 2014, Defendant filed a motion in opposition to the People's predicate felony statement.
Arguments
Defendant contends that his 2009 conviction in Virginia for Unlawful Wounding cannot serve as the basis for a predicate felony offense because it does not constitute a felony under New York law. Specifically, Defendant argues that the Virginia statute encompasses a much broader range of conduct and physical injury than its closest New York felony counterpart, Assault in the Second Degree. Defendant argues that it is therefore possible to violate the Virginia statute by engaging in conduct that would not rise to the level of a felony in New York, relying on In re Jacoby, 69 A.D.3d 65, 886 N.Y.S.2d 383 (1st Dept.2009).
The People argue that a comparison of the Virginia statute with the Second Degree Assault statute under P.L. § 120.05(2) demonstrates that Defendant's Virginia conviction may serve as a predicate felony in New York because the essential elements of the two offenses are the same. While the People acknowledge that a deadly weapon or dangerous instrument is required under Penal Law § 120.05(2), they argue that the two statutes are equivalent because they share the same level of intent. In addition, the People contend that In re Jacoby is not controlling in the instant matter and rely instead on People v. Burnette, 38 Misc.2d 572, 235 N.Y.S.2d 948 (Oneida Cty. Ct.1962), for the proposition that a court may review the underlying accusatory instrument to determine whether the defendant used a weapon during the commission of the crime.
Discussion
C.P.L. § 400.21(3) provides that a defendant must be given the opportunity to challenge a predicate felony statement prior to sentencing. Where a defendant controverts an allegation in the predicate felony statement, the People have the burden of establishing beyond a reasonable doubt that the defendant has been subjected to a predicate felony conviction. C.P.L. § 400.21(7).
Penal Law § 70.06 requires an enhanced sentence for those found to be second felony offenders. A second felony offender “is a person ... who stands convicted of a felony defined in this chapter, other than an A–I felony, after having previously been subjected to one or more predicate felony convictions.” Penal Law § 70.06(1)(a). An out-of-state offense will constitute a predicate felony conviction when: (a) the sentence exposure for that crime is in excess of one year; and (b) the out-of-state conviction is “for a crime whose elements are equivalent to those of a New York felony.” People v. Gonzalez, 61 N.Y.2d 586, 589, 475 N.Y.S.2d 358, 463 N.E.2d 1210 (1984) ; see also Penal Law § 70.06(1)(b)(i).
In determining whether an out-of-state conviction's elements are equivalent to a New York felony, “[the] inquiry is limited to a comparison of the crimes' elements as they are respectively defined in the out-of-state and New York penal statutes.” People v. Muniz, 74 N.Y.2d 464, 467–68, 548 N.Y.S.2d 633, 547 N.E.2d 1160 (1989). The comparison of the statutes may not consider the factual allegations in the underlying indictments, “as it is immaterial that the crime actually committed in the foreign jurisdiction may be the equivalent of a felony in New York, if the foreign statute would have permitted a conviction for conduct that did not amount to a New York felony.” People v. Ramos, 19 N.Y.3d 417, 419, 948 N.Y.S.2d 239, 971 N.E.2d 369 (2012), quoting People v. Olah, 300 N.Y. 96, 98–99, 89 N.E.2d 329 (1949). The Court of Appeals has interpreted this test as one of “strict equivalency,” and has observed that “technical distinctions between the [elements of the] New York and foreign penal statutes can preclude use of a prior felony as a predicate for enhanced sentencing.” Ramos, 19 N.Y.3d at 419, 948 N.Y.S.2d 239, 971 N.E.2d 369, quoting Matter of North v. Board of Examiners of Sex Offenders of NY, 8 N.Y.3d 745, 751, 840 N.Y.S.2d 307, 871 N.E.2d 1133 (2007).
Although the statutory comparison is generally limited to the elements of the respective crimes, “a sentencing court may go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction where the statute renders criminal not one act but several acts which, if committed in New York, would in some cases be felonies and in others would constitute only misdemeanors.” People v. Boston, 79 A.D.3d 1140, 913 N.Y.S.2d 344 (2d Dept.2010), quoting Gonzalez, 61 N.Y.2d at 590, 475 N.Y.S.2d 358, 463 N.E.2d 1210.
Here, Defendant was convicted of the crime of Unlawful Wounding under Virginia Code § 18.2–51 on January 27, 2009. The People relied on that conviction in their predicate felony statement. That statute reads as follows:
If any person maliciously shoot, stab, cut or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If any such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
In Virginia, a Class 3 felony requires a sentence of not less than five years, and not more than twenty years imprisonment (Va.Code Ann. 18.2–10 [c] ), and a Class 6 felony requires a sentence of not less than one year, and not more than five years (Va.Code Ann. 18.2–10 [f] ). Therefore, the Virginia statute satisfies the first prong of the test to determine whether the out-of-state conviction may serve as a predicate felony, in that a prison sentence in excess of one year is authorized. See 70.06(1)(b)(i).
A judge may exercise his or her discretion and sentence an individual convicted of a Class 6 felony to confinement in jail for no longer than twelve months along with a fine not greater than $2,500. Va.Code Ann. 18.2–10(f)
Both parties agree that the closest New York felony analog to the Virginia Statute is Assault in the Second Degree pursuant to P.L. § 120.05(2), which reads as follows:
A person is guilty of assault in the second degree when with the intent to cause physical injury to another person, he causes such injury to such person or a third person by means of a deadly weapon or a dangerous instrument.
However, contrary to the People's position, this Court finds that the Virginia statute does not satisfy the strict equivalency test for a predicate felony when compared to Assault in the Second Degree under subdivision (2), see Ramos, 19 N.Y.3d at 419, 948 N.Y.S.2d 239, 971 N.E.2d 369, because the conduct and consequences encompassed under the Virginia statute are much broader than that under the New York statute. People v. Yusuf, 19 N.Y.3d 314, 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 (2012) (“When a statute-to-statute comparison reveals differences in the elements such that it is possible to violate the foreign statute without engaging in conduct that is a felony in New York, the foreign statute may not serve as a predicate felony.”). Therefore, the two statutes are not equivalent.
Unlike the New York statute, which requires the use of a deadly weapon or dangerous instrument, the Virginia statute does not. Va.Code § 18.2–51 ; See Johnson v. Commonwealth, 184 Va. 409, 416–17, 35 S.E.2d 594 (1945) (upholding a conviction under the malicious wounding statute for inflicting injuries using a “fist”). The New York second-degree assault statute requires physical injury plus the “use of a deadly weapon or dangerous instrument.” P.L. § 120.05(2). A person who intentionally causes “physical injury,” without the use of a dangerous instrument or a deadly weapon commits only misdemeanor assault in New York under Penal Law § 120.00(1).
While there is no precedent on point regarding the predicate status of this Virginia statute in New York, Defendant correctly asserts that the First Department recently indicated in In re Jacoby, an attorney disbarment proceeding, its belief that the statute does not constitute a felony in New York. 69 A.D.3d at 65–67, 886 N.Y.S.2d 383. In In re Jacoby, the First Department explained that suspension of an attorney pending disbarment proceedings is mandated not only for out-of-state crimes which are the equivalent of New York felonies, but also for crimes which, under Judiciary Law § 90(4)(d) are “serious crimes,” because they are “denominated a felony under the laws of [the convicting state but do] not constitute a felony under the laws of this state.” Id. at 66–67, 886 N.Y.S.2d 383. The First Department further recognized that, since the lawyer in question had been convicted under Virginia Code § 18.2–51, the same statute at issue here, he had been convicted of a Virginia felony “that has its New York counterpart in a class A misdemeanor. ” Id. (emphasis added).In People v. Gianquinto, 991 N.Y.S.2d 507, 2014 N.Y. Slip Op 24221 (Sup.Ct. N.Y. Cty. Aug. 5, 2014), the court noted that the equivalency test is less stringent in the context of an attorney discipline matter. Id. at *2. Unlike the “strict equivalency” test for determining whether an out-of-state offense constitutes a felony in New York for sentencing purposes, a “very close, if not a precise parallelism' is sufficient” in the attorney discipline context. Id., citing Matter of Chu, 42 N.Y.2d 490, 494, 398 N.Y.S.2d 1001, 369 N.E.2d 1 (1977). Notably, even under this lesser standard of “very close,” the Virginia Statute at issue here was deemed by the court in In Re Jacoby as rising only to the level of a misdemeanor. 69 A.D.3d at 66–67, 886 N.Y.S.2d 383. Thus, In re Jacoby further supports Defendant's argument.
Lastly, with regard to the People's request to obtain the accusatory instrument underlying Defendant's Virginia conviction, there is no indication that scrutinizing the accusatory instrument would clarify the issue of statutory equivalency. Although the People rely on Burnette, a 1962 case in which a county court found the Virginia statute to be equivalent to a New York felony based on its examination of the underlying accusatory instrument, it is well settled that, “the allegations in the accusatory instrument may be referred to when necessary to clarify the statutory charge, to limit or narrow the basis for the conviction, but they may not be used to enlarge or expand the crime charged.” Gonzalez, 61 N.Y.2d at 591, 475 N.Y.S.2d 358, 463 N.E.2d 1210. In light of the fact that the Virginia statute contains no weapons requirement whatsoever, resort to the accusatory instrument, and the facts recited therein, would serve only to enlarge the crime charged, but not to limit or narrow the statutory basis for Defendant's conviction. It would therefore be improper to engage in that exercise.
Moreover, this is not a case involving an out-of-state statute with specific subsections, some of which would amount to a felony and others which would not. See People v. Yancy, 86 N.Y.2d 239, 247, 630 N.Y.S.2d 985, 654 N.E.2d 1233 (1995) (finding that it was not clear on the face of the indictment whether defendant's prior New Jersey conviction amounted to a New York felony because the indictment did not indicate which subsection of the crime defendant violated). On the contrary, the Virginia statute broadly defines the acts and consequences considered punishable under that crime, and does not include any specific subsections whatsoever, let alone any equivalent to New York felony assault. While the People supplied a narrative of the incident in their response, and suggest that the conduct described therein satisfies the New York felony of second degree assault, reliance on the narrative is improper. See Gonzalez, 61 N.Y.2d at 591, 475 N.Y.S.2d 358, 463 N.E.2d 1210 (the crime charged cannot be expanded by reference to other statements). Because the People failed to satisfy their burden of establishing that Defendant's out-of-state conviction is equivalent to a felony in New York, Defendant's Virginia conviction may not be used as the basis for a predicate felony for sentencing purposes. Yancy, 86 N.Y.2d at 247, 630 N.Y.S.2d 985, 654 N.E.2d 1233.
Conclusion
For the reasons stated above, Defendant's motion in opposition to the People's predicate felony statement is granted. Accordingly, Defendant is to be sentenced in accordance with his actual predicate status, as a first time felony offender.
The constitutes the decision and order of this Court.