Opinion
3980/2013
01-05-2016
The People of the State of New York, v. Haywood Hinton, Defendant.
For Defendant: Robert S. Dean Center for Appellate Litigation 74 Trinity Place - 11th Floor New York, NY 10006 By: Katharine Skolnick, Esq. For the People: Cyrus Vance, Jr. New York County District Attorney's Office One Hogan Place New York, N.Y. 10007 By: Mireille Dee, Esq.
For Defendant: Robert S. Dean Center for Appellate Litigation 74 Trinity Place - 11th Floor New York, NY 10006 By: Katharine Skolnick, Esq. For the People: Cyrus Vance, Jr. New York County District Attorney's Office One Hogan Place New York, N.Y. 10007 By: Mireille Dee, Esq. Juan M. Merchan, J.
Defendant was convicted on October 8, 2014, following a jury trial, of seventeen counts of Criminal Possession of a Forged Instrument in the First Degree in violation of Penal Law § 170.30, a class C felony. At sentencing, on October 23, 2014, Defendant was arraigned on a predicate felony statement, which alleged that on June 2, 2004, in the Superior Court of Hudson County, in the State of New Jersey, Defendant was convicted of the felony of Uttering a False Instrument in violation of New Jersey Code of Criminal Justice § 2C:21-1a(3). Defendant challenged the constitutionality of his New Jersey conviction, alleging that it was obtained in violation of the Interstate Agreement on Detainers Act. This Court adjourned the case to November 6, 2014, to conduct a predicate felony hearing.
At the hearing, the prosecutor played for the Court a recording of Defendant's 2004 plea allocution in New Jersey State Court, and provided the Court with the certificate of conviction with its original seal. While Defendant alleged that his plea was unconstitutional on the grounds that he was transferred from federal custody to New Jersey state custody in violation of the Interstate Agreement on Detainers, he did not provide any evidence or further explanation to support his claim of an alleged constitutional violation. Ultimately, this Court found that the People had met their burden to prove beyond a reasonable doubt that Defendant was subjected to a predicate felony conviction. Although defense counsel did not object to the New Jersey offense serving as a predicate on equivalency grounds, the prosecutor filed and served case law which she claimed to support its equivalency to a New York felony. Defendant was then sentenced as a second felony offender to an indeterminate prison term of three and a half to seven years.
On October 19, 2015, Defendant, through counsel, moved pursuant to Criminal Procedure Law (hereinafter "CPL") § 440.20, to set aside his sentence on the grounds that (1) the New Jersey offense identified in the People's predicate felony statement cannot lawfully serve as a predicate felony offense for the purpose of adjudicating Defendant a second felony offender, and (2) defense counsel's failure to challenge this conviction at the time of sentence deprived Defendant of the effective assistance of counsel.
Arguments
Defendant argues that his 2004 conviction in the state of New Jersey for the crime of Uttering a False Instrument cannot lawfully serve as a predicate felony offense because the New Jersey statute encompasses a much broader range of conduct than its New York felony counterparts, Criminal Possession of a Forged Instrument in the First Degree (Penal Law § 170.30) and Criminal Possession of a Forged Instrument in the Second Degree (Penal Law § 170.25). Specifically, Defendant asserts that the mens rea requirement of the New Jersey statute is broader than that of its New York felony counterparts, because the New Jersey statute criminalizes either intent to defraud or knowledge that one is facilitating fraud, whereas the New York forgery statutes require both intent to defraud and knowledge of a forgery. Defendant further asserts that the New Jersey statute is not equivalent to a New York felony because it criminalizes the utterance of "any writing," whereas New York limits felony prosecutions to a narrow class of enumerated writings. Lastly, Defendant argues that he received ineffective assistance of counsel at sentencing because defense counsel failed to challenge the People's predicate felony statement on the above grounds, a challenge which he contends would have been successful.
While the People concede that the New Jersey statute is broader than its New York felony counterparts, they argue that, in practice, felony conduct in New Jersey can easily meet the requirements of a felony in New York. Given the broad nature of the New Jersey statute, the People argue that this Court should refer to the accusatory instrument in making an equivalency determination. The People assert that Defendant's conduct, as recited in the accusatory instrument, amounts to a felony under New York law. The People further argue that Defendant's ineffective assistance of counsel claim should be denied on the grounds that (1) Defendant was properly adjudicated a second felony offender, and (2) Defendant's motion does not contain an affidavit from his trial counsel detailing his strategy in connection with the predicate felony and sentencing hearing.
Discussion
A motion to set aside a sentence pursuant to CPL § 440.20(1) may be made upon the ground that the sentence imposed was unauthorized, illegally imposed or otherwise invalid as a matter of law. "The party challenging the validity of the sentence bears the burden of coming forward with supporting allegations sufficient to create an issue of fact." People v. Inverso, 20 Misc 3d 1107(A), *2 (Sup Ct. New York County 2008), citing People v. Session, 34 NY2d 254, 255-56 (1974). The motion impacts only upon the sentence and, if granted, does not affect the underlying conviction. CPL § 440.20(4). A. Second Felony Offender Status
Penal Law § 70.06 requires an enhanced sentence for those persons found to be second felony offenders. A second felony offender is a person "who stands convicted of a 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 only when: (a) the sentence exposure for the out-of-state offense 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 NY2d 586, 589 (1984); see also Penal Law § 70.06(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 NY2d 464, 467-68 (1989). This 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 NY3d 417, 419 (2012), quoting People v. Olah, 300 NY 96, 98-99 (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 NY3d at 419.
Here, Defendant was convicted of the crime of Uttering a False Instrument in violation of N.J. Stat. Ann. § 2C:21-1a(3) on June 2, 2004, in the state of New Jersey. The People relied on that conviction in their predicate felony statement. That statute (of which Uttering a False Instrument is the third subsection) reads as follows: A person is guilty of forgery if, with the purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor: (1) Alters or changes any writing of another without his authorization; (2) Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act or of a fictitious person, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or (3) Utters any writing which he knows to be forged in a manner specified in paragraph (1) or (2).
The New Jersey Code of Criminal Conduct does not classify its offenses in terms of misdemeanors and felonies, but instead uses numerical degrees. The two degrees that the forgery statute at issue is divided into - third and fourth - are both punishable by more than one year in prison: a term of three to five years is authorized for third degree crimes, and up to eighteen months is authorized for fourth degree crimes. N.J. Stat. Ann. § 2C:43-6a(3)-(4). Therefore, the New Jersey statute satisfies the first prong of the strict scrutiny test, in that a prison sentence in excess of one year is authorized. See Penal Law 70.06 (1)(b)(i).
The two New York felonies most analogous to the New Jersey statute are Criminal Possession of a Forged Instrument in the First Degree and Criminal Possession of a Forged Instrument in the Second Degree. Those statutes read as follows: A person is guilty of criminal possession of a forged instrument in the first degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.15. Penal Law § 170.30. A person is guilty of criminal possession of a forged instrument in the second degree when, with the knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10. Penal Law § 170.25.
After careful examination and comparison of both states' respective forgery statutes, this Court finds that the New Jersey statute is not strictly equivalent to either of its New York felony counterparts. See Ramos, 19 NY3d at 419. First, unlike the New York statutes, which require proof of both knowledge that the instrument is forged and intent to defraud, see Penal Law §§ 170.30 & 170.25, the New Jersey statute simply requires either intent to defraud or knowledge that one is facilitating fraud, see N.J. Stat. Ann. § 2C:21-1a . Since the New Jersey statute uses the disjunctive "or," it potentially punishes a much broader category of conduct than its New York felony counterparts. In fact, even Criminal Possession of a Forged Instrument in the Third Degree, a misdemeanor, requires both knowledge and intent. Penal Law § 170.20. Thus, because the New Jersey statute punishes a broader range of mental states than its New York counterparts, it fails New York's strict equivalency test. See Ramos, 19 NY3d at 419; People v. Muslim, 23 AD3d 319 (1st Dept. 2012) (defendant's prior conviction under New Jersey law for aggravated assault did not constitute a predicate felony, where, unlike its New York felony counterpart, the New Jersey offense could be committed through non-intentional conduct); People v. Gianquinto, 45 Misc 3d 343 (Sup. Ct. New York County 2014) (federal statute was not strictly equivalent to New York offense of first-degree offering a false instrument for filing, where the New York statute included an intent element not included in the federal statute).
Second, the New Jersey statute punishes the utterance of "any writing" known to be forged in a certain manner, whereas New York specifically defines which forged instruments are punishable under each felony-level degree of uttering a forged instrument. See Penal Law §§ 170.15 & 170.10. For instance, the first group of forged instruments punishable under New York's first-degree possession of a forged instrument statute is limited to those instruments issued by the government, a government instrumentality, a corporation, or other organization, see Penal Law § 170.15, and the next group of forged instruments punishable under second-degree possession of a forged instrument is limited to those specified in Penal Law § 170.10, including but not limited to certain documents which transfer commercial or legal interests. The New Jersey statute, on the other hand, punishes "any writing" known to be forged, and broadly defines writing as, "any printing or . . . other method of recording information." N.J. Stat. Ann. § 2C:21-1a(3). That definition is more akin to New York's third-degree possession of a forged instrument, a misdemeanor, which punishes conduct involving written instruments which have been "falsely made, completed or altered," Penal Law § 170.00(7), and contains a similarly inclusive definition of forged written instruments: "any instrument or article . . . used for the purpose of reciting, embodying, conveying or recording information," Penal Law § 170.00(1). Based on this comparison, the New Jersey statute is not strictly equivalent to any New York felony because it clearly punishes a much broader range of conduct than its New York felony counterparts. See Ramos, 19 NY3d at 419.
At sentencing, the People relied on People v. Wengorra, 256 A.D. 508 (1st Dept. 1939), and Matter of Felsen, 40 AD3d 1257 (3d Dept. 2007). However, the People's reliance on those cases is misplaced. As defense counsel correctly asserts, Wengorra is a 1939 case that pre-dates the substantially revised Penal Law § 70.06 as well as the Court of Appeals' strict equivalency test. See Matter of North v. Board of Sex Offenders of State of New York, 8 NY3d 745 (2007); Muniz, 74 NY2d 464; Gonzalez, 61 NY2d 586. Likewise, Matter of Felsen, an attorney discipline matter, is also not on point. In that case, the Third Department ordered disbarment after finding that the New Jersey statute at issue was "essentially similar" to the New York felony of second-degree criminal possession of a forged instrument. However, as articulated above, the test for determining whether an out-of-state conviction constitutes a predicate felony for the purpose of adjudicating a defendant a predicate felon is one of strict equivalency, see Ramos, 19 NY3d at 419, and not the lower standard of "essentially similar." See People v. Muslim, 23 AD3d 319 (1st Dept. 2005); Gianquinto, 45 Misc 3d at 346. Therefore, Matter of Felsen does not support the People's position.
Lastly, the People's request that this Court consider the New Jersey accusatory instrument in resolving Defendant's predicate status is denied. As a narrow exception to the proscribed strict equivalency test, "a sentencing court may go beyond the statute and scrutinize the accusatory instrument in the foreign jurisdiction because 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. Yusuf, 19 NY3d 314, 321 (2012), citing Gonzalez, 61 NY2d at 590. Moreover, "the allegations of 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 NY2d at 591. Contrary to the People's argument, this case does not fit into these narrow exceptions. Indeed, the entire New Jersey statute lacks the essential intent element present in its New York felony counterparts, thus, as a whole, the New Jersey statute is not equivalent to a New York felony. For this reason , it would be improper to consider the factual allegations in the New Jersey accusatory instrument. See Yusuf, 19 NY3d at 321 ("where there are differences in the intent elements of the New York and out-of-state crimes, the trial court may not consider the recitals in the accusatory instrument underlying the foreign conviction when resolving a defendant's status as a predicate felon.")
Based on the foregoing, this Court finds that Defendant's New Jersey conviction does not constitute a predicate felony offense in New York. Accordingly, Defendant is entitled to resentencing without consideration of that prior conviction.
B. Ineffective Assistance of Counsel
Given the above findings regarding Defendant's true predicate status, this Court declines to address Defendant's ineffective assistance of counsel claim.
Conclusion
Defendant's motion to set aside his sentence pursuant to CPL 440.20 is granted. Accordingly, this matter is to be adjourned for Defendant to be resentenced in accordance with his actual predicate status.
The constitutes the decision and order of this Court. Dated: January 5, 2016 New York, New York _________________________________ Juan M. Merchan Judge of the Court of Claims Acting Justice - Supreme Court