Opinion
November 1, 1988
Appeal from the Supreme Court, Bronx County (Richard Lee Price, J.).
The sole issue on appeal is the propriety of sentencing defendant as a predicate felony offender. Defendant contends that neither of his New Jersey burglary convictions, upon which the People rely, qualifies as a predicate felony conviction because the underlying crime would not constitute a felony under New York law. The New Jersey burglary statute provides, in pertinent part,
"[a] person is guilty of burglary if, with purpose to commit an offense therein he:
"(1) [e]nters a structure * * * or
"(2) [s]urreptitiously remains in a structure * * * knowing that he is not licensed or privileged to do so." (NJ Stat Annot § 2C:18-2 [a].)
Thus, the New Jersey burglary statute requires that the culpable conduct be accompanied by the intent to commit an "offense", while Penal Law § 140.20, New York's third degree burglary statute, requires an intent to commit a "crime". Defendant argues that the element of intent in the New Jersey statute is defined in a way that it may not constitute felonious conduct in New York since an "offense" in New Jersey contemplates conduct which might be a mere violation in New York, whereas a "crime" in New York must be a felony or misdemeanor.
We do not find any such infirmity in the New Jersey statute, which provides that an offense "for which a sentence of imprisonment in excess of 6 months is authorized [to be] a crime within the meaning of the Constitution of this State." (NJ Stat Annot § 2C:1-4 [a].) Crimes are designated "as being of the first, second, third or fourth degree." (NJ Stat Annot § 2C:1-4 [a].) A crime of the first degree is punishable by a sentence of imprisonment for a specific term of between 10 and 20 years; a crime of the second degree for a specific term between 5 and 10 years; a crime of the third degree for a specific term between 3 and 5 years; and a crime of the fourth degree for a specific term not to exceed 18 months. (NJ Stat Annot § 2C:43-6 [a].) Thus, a crime in New York, defined as "a misdemeanor or a felony" (Penal Law § 10.00), finds its counterpart in the New Jersey statute defining an offense. While the term offense includes a "disorderly persons offense", as well as a "petty disorderly persons offense", it does so only when such offenses are "so designated in [the] code or in a statute other than [the] code." (NJ Stat Annot § 2C:1-4 [b].) The New Jersey burglary statute does not enlarge upon the term "offense" to include such noncrime offenses. Thus, defendant was properly sentenced as a predicate felon on the basis of the New Jersey convictions.
Concur — Kupferman, J.P, Sullivan, Asch, Milonas and Ellerin, JJ.