The People, Appellant,v.Marlo S. Helms, Respondent.BriefN.Y.October 12, 2017To be argued by Leah R. Mervine Time requested: 10 minutes 8rate # CJrew 'l:lork e ourt cf Cillppeals THE PEOPLE OF THE STATE OF NEW YORK, •VS• MARLO S. HELMS, Appellant, Defendant-Respondent. Brief for Appellant APL-2016-00168 ~1onroe County Indictment #20 12-0449 Brief completed on October 11, 2016 SANDRA DOORLEY District Attorney of Monroe County Attorney for Appellant By: LEAH R. MERVINE Assistant District Attorney Ebenezer Watts Building 47 Fitzhugh Street South Rochester, New York Telephone: (585) 753-4354 Facsimile: (585) 753-4576 TABLE OF CONTENTS TABLE OF AUTHORITIES QUESTION PRESENTED PRELIMINARY STATEMENT STATEMENT OF FACTS POINT I CONCLUSION Evaluating interpretive analysis of a foreign state's statutes and case law is permissible to determine a foreign statute's equivalency to a New York felony. 11 1 2 3 6 17 TABLE OF AUTHORITIES CASES Hiley v State, 245 Ga App 900 (Ga Ct App 2000) ........................... 14 Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY 3d 7 45 (2007) .................................................. 6 People ex rei Gold v Jackson, 5 NY2d 243 ( 1959) ............................ 7 People ex rei. Kronick v Jackson, 3 AD2d 804 (3d Dept 1957) ................. 16 People v Gonzalez. 61 NY2d 586 ( 1984) ................................... 8 People v Hall, 158 AD2d 69 (1st Dept 1990), lv denied 76 NY2d 940 (1990), 76 NY2d 1021 (1990) ............................................... 15 People v Helms, 141 AD3d 1138 (4th Dept 2016) ....................... passim People v Hicks, 155 Mise 3d 209 (Sup Ct, NY County 1991) .................. 16 People v Jones, 25 NY3d 57 (2015) .................. . .................... 6 People v Jurgins, 26 NY3d 607 (2015) ................................ 6, 8, 12 People v Muniz, 74 NY2d 464 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8, 10, 16 People v Olah, 300 NY 96 ( 1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8, 12 People v Perkins, 11 NY2d 195 (1962) ................................... 12 People v Ramos, 19 NY 3d 417 (20 12) ............................. . ....... 6 People v Thompson, 140 AD2d 652 (2d Dept 1988) ......................... 16 People v Toliver, 226 AD2d 255 (1st Dept 1996), lv denied 88 NY2d 970 (1996).4, 15 People v Yancy, 86 NY2d 239 ( 1995) ...................................... 8 11 People v Yusuf, 19 NY3d 314 (2012) ...................................... 8 Price v State, 289 Ga 459 (2011) ........................................ 13 Redford v State, 309 Ga App 118 (Ga Ct App 2011) ......................... 14 Sanders v State, 293 Ga App 534 (2008) .................................. 13 Waldrop v State, 300 Ga App 281 (Ga Ct App 2009) ........................ 14 STATUTES General Construction Law § 22 .......................................... 11 Georgia Code Annotated § 16-1-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Georgia Code Annotated former§ 16-2-2 . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14, 15 Georgia Code Annotated§ 16-3-5 ....... . ......... . .............. . . . . 10, 15 Georgia Code Annotated § 16-7-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Georgia Code Annotated§ 16-7-21 . . ................ . ... . . . .. . ......... . 15 Penal Law § 15.05 .... . .. . .. . ......................... . . . .......... . ... 9 Penal Law § 70.02 .... . .. .. .... . ... . ...... . ............. . .. .. .......... 9 Penal Law § 70.04 .... . ....... . .... . ......... . .... . . . ..... .. . .. ........ 6 Penal Law § 110.00 ........... . .... . . . ....... . . . . .. ........... . . . . . . . . . 2 Penal Law§ 140.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 15 Penal Law § 265.03 .. . .. . .... . .......... . .. . ........................ 2, 3 Statutes § 92 .. . .... . .. . ......... . ......... . ........ . . . ........ . ... . .. 7 i.i i 1. Question: Answer of the Trial Court: Answer of the Appellate Division: QUESTION PRESENTED Does the strict equivalency standard permit a sentencing court to consider a foreign jurisdiction's statutory definitions and common law interpretations when comparing crime elements to determine if a recidivist offender's foreign conviction is equivalent to a New York felony? Yes. The sentencing court, relying on precedent from the Appellate Division, First Department, sentenced defendant as a second violent felony offender based on a prior burglary conviction from the State of Georgia. No. By a vote of four to one, the Appellate Division, Fourth Department, held that the conviction may not be used as a predicate because Georgia's burglary statute lacked the word "knowingly" in its primary statutory language, despite the fact that under Georgia law, a person must act "knowingly" in order to be convicted of burglary in that state. PRELIMINARY STATEMENT Defendant Marlo S. Helms was convicted on November 13, 2012, upon his plea of guilty, to the reduced count of attempted criminal possession of a weapon in the second degree (Penal Law§§ 110.00, 265.03 [3]) in Monroe County Court (Argento, J.) in full satisfaction of one count of criminal possession of a weapon in the second degree(§ 265.03 [3]) (Record on Appeal [hereinafter "R"] 12-R13, R80-R81). Defendant was adjudicated a second violent felony offender based on a September 27, 1999, conviction for burglary in the State of Georgia (R14, R93). He was then sentenced as a second violent felony offender to a determinate term of incarceration of 5 years in the New York State Department of Corrections with 5 years of postrelease supervision (R94 ). The Appellate Division, Fourth Department affirmed defendant's conviction, but vacated defendant's sentence after finding that the Georgia felony did not constitute a felony in New York, and as so modified, remitted the matter to Monroe County Court for resentencing. On July 18, 2016, defendant was resentenced as a first time felony offender to a definite term of incarceration of one year in the Monroe County Jail (Rl2, R98). The People sought leave to appeal from the dissenting Justice at the Appellate Division and now appeal. 2 STATEMENT OF FACTS Defendant was indicted on one count of criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]) for an incident that occurred on June 10, 2012 (R16-R20). The People offered defendant a plea bargain with a range of sentences depending on whether the sentencing court determined defendant to be a second violent felony offender, second felony offender, or a first time offender based on his prior September 27, 1999, conviction for burglary from the State of Georgia (R68-R69; see R23). The Plea Defendant agreed to the offer and stipulated that as long as his Georgia conviction fell within the ten-year period and was deemed to be a felony under New York law, he "would agree not to contest his status by way of a hearing" (R71). Defendant further waived his right to appeal both verbally and in writing as a specific condition of the plea reduction (R15, R77-R78). Defendant then admitted that on June 10, 2012, around 10:37 P.M., while on Lake Avenue in the City of Rochester, he possessed a .32 caliber revolver loaded with seven rounds, that was in proper working order and capable of discharging ammunition (R79- R80). 3 The People furnished the court with proof regarding defendant's prior Georgia conviction (R21-R36). There was disagreement, however, between the parties as to whether defendant's Georgia conviction served as a predicate for recidivist sentencing (R37-R57). Prior to sentencing, the court indicated that it "had the opportunity to review all the papers" and it referenced the First Department's case, People v Toliver (226 AD2d 255 [1st Dept 1996],/v denied 88 NY2d 970 [1996]), noting "[b]ased on that case it would be the court's determination that [defendant] is a second violent felony offender" (R87). Sentencin~: At sentencing, defendant admitted to the second violent felony infonnation filed by the People (R92-R93; see R14). Defense counsel, however, added "[w]e are not consenting to the fact that he is a second violent felony offender" (R94). Defendant was then sentenced, as promised, as a second violent felony offender to a detenninate tenn of incarceration of 5 years in the Department of Corrections with 5 years of postrelease supervision (R94 ). . The Decision of the Appellate Division Defendant appealed to the Appellate Division, Fourth Department contending that the People failed to prove beyond a reasonable doubt that the Georgia statute defining burglary contained an essential element that is expressly 4 contained in the New York statute defining burglary. The majority of the Fourth Department acknowledged that it was not following both the First and Second Department's case law that expressly held Georgia's burglary statute was equivalent to New York's burglary statute. It then found that County Court erred in sentencing defendant as a second violent felony offender because the Georgia crime of burglary did not contain the element of "knowledge" on its face (R4-R5; People v Helms, 141 AD3d 1138 [4th Dept 2016]). By a vote of four to one, the Appellate Division, Fourth Department, modified the judgment by vacating the sentence, and as so modified, affirmed. In his dissent, Justice Curran expressed his concern that "the majority is comparing words in the two burglary statutes rather than elements" (R7; id. at 1142). Resentencina: On July 18, 2016, the matter was remitted for resentencing to Monroe County Court (Argento, J.) in accordance with the Appellate Division's decision (R96-R100). At that appearance, defendant was resentenced without the predicate status, to a definite one year term in the Monroe County Jail (R97-R98). Leave The dissenting Justice at the Appellate Division granted the People leave to appeal to this Court (R2-R3). 5 POINT I Evaluating interpretative analysis of a foreign state's statutes and case law is permissible to determine a foreign statute's equivalency to a New York felony To determine the sentencing status of a recidivist offender, 1 New York employs a "strict equivalency" standard to determine if a defendant's out-of-state prior conviction is equivalent to a New York felony (People v Ramos, 19 NY3d 417,419 [2012]; see People v Olah, 300 NY 96,99 [1949]). This analysis is generally limited" 'to a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes'" (People v Jurgins, 26 NY3d 607, 613 [2015], citing People v Muniz, 74 NY2d 464,467-468 [1989]). While this Court has made it clear that " 'technical distinctions between the New York and foreign penal statutes can preclude use of a prior felony as a predicate for enhanced sentencing'" (People v Ramos, 19 NY3d 417,419 [2012]; quoting Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 751 [2007]), it has never prohibited "interpretative analysis of the foreign state's statutes and case law" (R6; People v Helms, 141 AD3d 1138, 1141 [4th Dept 2016, Curran J ., dissenting]). Therefore, the question in this appeal is 1Here, defendant was originally sentenced as a second violent felony offender (Penal Law § 70.04 [ 1 ]), however this issue applies to all forms of recidivist sentences, excluding persistent felony offenders (see People v Jones, 25 NY3d 57, 61 [2015]). 6 whether variation in specific words contained in a statute constitute a technical distinction, or whether a sentencing court may consider interpretative analysis of the foreign state's statutes and case law. Olah and its proa:eny Enhanced sentencing for recidivist offenders has been part of New York's jurisprudence since 1823 (see People v Olah, 300 NY 96, 105 [1949, Conway, Lewis, and Dye, J.J., dissenting]). In Olah, it was explained, "What our Legislature intended was simple: If a person were convicted of doing an act in another State which if done here would be a felony and then committed a felony here, he was to receive additional punishment because he would be considered a second offender" (id.). While "[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature" (Statutes § 92 [a]), given the unique challenge of comparing foreign statutes; interpretation of this area of law has been anything other than simple. After Olah was decided, this Court permitted review of an indictment to determine the elements of the crime the defendant had previously pleaded under a Florida statute that crirninalized two discrete actions for the purpose of determining equivalency (People ex rel Gold v Jackson, 5 NY2d 243 [1959]). In People v Gonzalez, however, this Court clarified that allegations in an accusatory instrument or evidence that is elicited at trial can "limit or narrow the basis for the 7 conviction, but they may not be used to enlarge or expand the crime charged" (61 NY2d 586, 591 [ 1984 ]). Nor can a prior crime serve as a predicate when the intent elements are not equivalent between the foreign statute and New York felony regardless of the facts of the underlying case (see People v Muniz, 74 NY2d 464 [ 1989]). This Court also forbade reliance on a superceded complaint to determine which subsection of a three-prong statute a defendant was previously convicted (People v Yancy, 86 NY2d 239 [1995]). Further, the facts contained in an indictment may not be evaluated to determine if a defendant's intent meets the New York statutory intent element, absent an intent element in the foreign statute (see People v Yusuf, 19 NY3d 314 [2012]). Unlike Olah and its progeny, this case involves a situation where all of the elements of both the predicate conviction, and the New York conviction are equivalent. The verbiage, however, differs between the foreign statute and the New York statute. Thus to be equivalent, the courts must look at statutory definitions or common law analysis provided by the foreign jurisdiction. Viewed through the lens of Georgia's interpretation of its own statute, " 'a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes' "(see People v Jurgins, 26 NY3d 607, 613 [2015]; quoting Muniz, 74 NY2d at 467-468), demonstrates Georgia's burglary statute is equivalent to 8 New York's burglary statute. New York and Geor~:ia's bur~:Iary statutes Defendant was properly sentenced as a second violent felony offender because the People proved beyond a reasonable doubt that on September 27, 1999, defendant was convicted of the crime of burglary in the Superior Court of Clayton County in Georgia (see R23). In order to be sentenced as a second violent felony offender, defendant's Georgia burglary conviction had to be "equivalent" to New York's violent felony offense of burglary in the second degree (see Penal Law §§ 70.02 [1] [b]; 140.25). In relevant part, New York State's burglary statute reads: "A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when . . . . The building is a dwelling." Further, as relevant to this appeal, the New York statute must be read in conjunction with Penal Law§ 15.05 (2), which defines "knowingly" as follows: " 'Knowingly.' A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists." Meanwhile, Georgia's burglary statute, which was effective in 1999 when defendant was convicted, provides in relevant part: "A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for 9 use as the dwelling of another" (Ga Code Ann former§ 16-7-1 [a]). This statute must be read in conjunction with Georgia Code Annotated§ 16-2-2, which provides: "[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence." Further, Georgia Code Annotated§ 16-3-5 provides that: "[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission." Comparine elements as they are respectively defined in the foreien and New York penal statutes Despite this statutory framework, the Appellate Division held that "on its face, the Georgia statute is lacking an essential element-knowledge that the entry or decision to remain is unlawful" (R4; Helms, 141 AD3d at 1139). This holding does not comport with the general rule for equivalency that allows "a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statute~" (People v Muniz, 74 NY2d 464 [1989] [emphasis added]). As noted by the dissent, "the majority is comparing words in the two burglary statutes rather than elements" (R7; Helms, 141 AD3d at 1142). From a public policy perspective, the Appellate Division's mechanical interpretation of the law produces untenable results. By way of example, the !0 burglary statute in New York references only the word "he" (see Penal Law § 140.25). If the language of our burglary statute is viewed only on its face, a foreign state seeking to enhance a female recidivist offender who had a conviction for burglary, using the Fourth Department's rational, could not. On its face, our burglary law applies only to males; females could commit the crime of burglary in the second degree with impunity in New York. Through, however, General Construction Law § 22, our legislature made it clear that "[ w ]henever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons." Applying the Appellate Division's instant reasoning that this Court's strict equivalency test requires a reading only of a penal statute's words, rather than the framework that defines and explains those statutes, would produce an absurd result. While the foreign statute's elements must match New York's, there is no precedent to say that the actual words of a singular statute must match. If law was derived only from the plain language of each statute, there would be no need for multiple statutes, definitions, or common law. The foreign state's common law can also demonstrates equivalency When this Court recently evaluated whether a Washington D.C. statute was the equivalent of a New York statute for predicate status, this Court looked to the 11 interpretation of the foreign statute by D.C. courts (see People v Jurgins, 26 NY3d 607, 614 [2015] ["Our reading of the statute is consistent with that of the D.C. courts that have interpreted its language"]). The dissent in the instant case recognized this Court's precedent noting, "there is no prohibition of an interpretative analysis of the foreign state's statutes and case law" (R6; Helms, 141 AD3d at 1141). Thus, even assuming arguendo that an element could not be discerned from the face of a statute, the common law of the foreign state should be relied upon to determine equivalency. Indeed, this Court has created precedent in this regard. This Court has had the occasion to evaluate a recidivist's sentence when the foreign jurisdiction's crime was solely "a common-law rather than a statutory crime" (People v Perkins, 11 NY2d 195, 197 [1962]). In Perkins, the defendant's predicate conviction was from North Carolina, where at the time, manslaughter was an uncodified crime. There, this Court had no choice but to look at the case law that defined the predicate crime (id.). In the dissent of Perkins, Olah's holding was modified to read: "[f]or purposes of considering whether a foreign conviction may be the basis of multiple offender treatment in this State, a crime is to be measured and limited by the statute or case law which detines it" (id. at 199, Froessel, J., dissenting [internal punctuation omitted]). How a foreign jurisdiction interprets the elements of its own crime is highly l2 relevant to the predicate analysis. Thus, there should be no prohibition on looking to a foreign state's case law. "Knowina:ly" is an intentional act performed without authority The Appellate Division, in holding that Georgia's burglary statute, on its face lacks the element "knowingly," views Georgia's crime of burglary as a strict liability crime. The State of Georgia, however, does not view its own burglary statute as enumerating a strict liability crime. In Georgia, the prosecution must prove beyond a reasonable doubt that a person knowingly entered or remained unlawfully in a building in order to be convicted of burglary (see e.g. Sanders v State, 293 Ga App 534, 536 [2008]). The verbiage "without authority" as understood by the State of Georgia, is the functional equivalent of New York's verbiage "knowledge." Georgia's highest court has explained "authorization [at the time of entry] alone would have eliminated one of the essential elements of burglary that the State was required to prove" (Price v State, 289 Ga 459,461 [2011]). Indeed, as the dissent in the instant case noted, "the majority has not addressed any difference it perceives in the 'knowingly' requirement in New York law and the 'intentional' requirement in Georgia law" (R8; Helms, 141 AD3d at 1144). While the majority of the Appellate Division concedes that Georgia's criminal trespass statute, which requires the element of "knowingly," is a lesser 13 included offense of burglary, it held that "the dissent has failed to present any Georgia case law specifically reading the "knowingly" requirement into the Georgia burglary statute" (R5; id. at 1140). The plain language of Georgia Code Annotated§ 16-2-2, makes it clear, however, that "[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence." Thus, Georgia's burglary statute, as do all Georgia criminal offenses, contain a knowing element whether or not the word ~'knowingly" is expressly used. Georgia courts have further explained, "where there is evidence that a defendant, who is accused of burglary, entered the dwelling house of another without authority, and where there is evidence that the defendant did so for some unlawful purpose but not with the intent to commit a felony or theft therein, the jury would be authorized to convict the defendant of criminal trespass" (Redford v State, 309 Ga App 118, 120 n 6 [Ga Ct App 2011]; citing Waldrop v State, 300 Ga App 281, 284 [Ga Ct App 2009]; Hiley v State, 245 Ga App 900 [Ga Ct App 2000]). Further under Georgia law, "[a] crime is included in another crime, inter alia, when '[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the [other] crime[.]' "(Redford, 309 Ga App at 120; citing Ga Code Ann§ 16-1-6 [1]). 14 Because the verbiage "knowledge" is used in the criminal trespass statute in Georgia (Ga Code Ann§ 16-7-21 [b]), and criminal trespass is a lesser included crime of burglary in Georgia, "knowledge" is a required element of Georgia's burglary statute. The Fourth Department created a split among Appellate Divisions In deciding that defendant was not a second violent felony offender, the Fourth Department has split with the other Appellate Division in this State. When originally sentencing defendant as a second violent felony offender, Monroe County Court appropriately relied on the First Department's decision in People v Toliver (226 AD2d 255 [1st Dept 1996], lv denied 88 NY2d 970 [1996]) (R87, R93). In Toliver, the First Department found that the defendant's contention "that the Georgia [burglary] statute lacks the mens rea requirement of the equivalent New York statute (Penal Law§ 140.25) is contradicted by express statutory provisions, requiring acquittal where 'intention' is lacking (Georgia Code Ann§ 16-2-2) or where the otherwise unlawful act or omission is justified by the defendant's 'misapprehension of fact' (Georgia Code Ann§ 16-3-5)" (Toliver, 226 AD2d at 256). Toliver is not an isolated case. By the start of the 1990s both the First and Second Departments had determined that the crime of burglary in Georgia was equivalent to New York's burglary statute (see People v Hall, 158 AD2d 69, 81 15 [1st Dept 1990], lv denied 16 NY2d 940 [1990], 76 NY2d 1021 [1990]; People v Thompson, 140 AD2d 652, 654 [2d Dept 1988]). In the 1950s, the Third Department, in evaluating an old incarnation of Georgia's former burglary statute held the same thing (see People ex ref. Kronick v Jackson, 3 AD2d 804, 804 [3d Dept 1957]). The only case that contradicted the holding of these three Departments prior to the instant case was a trial-level case (see People v Hicks, 155 Mise 3d 209 [Sup Ct, NY County 1991]). In holding that the general rules of statutory construction do not permit a statute to be looked at within the framework of how the foreign state interprets their own statute, the Appellate Division, Fourth Department has limited the strict equivalency test too tightly. A crime that Georgia deems is the functional equivalent of a New York crime, is now interpreted by New York to be a different crime. That result does not comport with the Legislature's intent when it included out-of-state felonies in its recidivist sentencing framework. "[A] comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes" (People v Muniz, 74 NY2d 464 [1989]) should include interpretative analysis of the foreign state's statutes and case law. To hold otherwise, provides recidivist offenders the benefit of shortened sentences based on an overtechnical "apples to apples" approach, rather than analysis of the recidivist offender's actual conviction. 16 CONCLUSION In comparing elements of a crime as they are defined to determine if a conviction from a foreign jurisdiction constitutes a felony in New York, a court should be permitted to look to the foreign jurisdiction,s statutory definitions and case law from that state. The order of the Appellate Division should be reversed and defendant's sentence as a second violent felony offender should be reinstated. Dated: October 11, 2016 Respectfully submitted, SANDRA DOORLEY Monroe County District Assistant District Attorney Ebenezer Watts Building 47 Fitzhugh Street South Rochester, New York 14614 Telephone: (585) 753-4354 Facsimile: (585) 753-4576 Pursuant to 22 NYCRR 500.13 (c) ( 1 ), I, Leah R. Mervine, by way of my signature above, certify that the word-processing system, s word count used to prepare this brief indicates that 3,543 words were used in the body of this brief. 17 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- MARLO S. HELMS, Defendant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Laurie Mastrocola , being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the I 1 th day of October, 2016, deponent served three copies of Brief for Appellant upon David Juergens, Esq., attorney for defendant in this action at 1 0 N. Ftizhugh Street, Rochester, NY 14614, by depositing true copies of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. J) _J_, (} U&«~ dV{toM~c/(4 Gil'\' R o:r~,·.r •ro !·!~t.,ry !"t•'l i·~. $'111' ('( r: "' Y~·~ J~em{'( f.('l r.l>. '1 S!i()JfU~'f'~00 CcmmiSSton £xp1res Aprll30. 20../-.f' LAURIE MASTROCOLA