The People, Appellant,v.Marlo S. Helms, Respondent.BriefN.Y.October 12, 2017To be argued by Leah R. Mervine Time requested: 10 minutes 8tate of &V'w 9:/ork ~ourt l!f ~eals THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- MARLO S. HELMS, Defendant-Respondent. Reply Brief for Appellant APL-2016-00168 Monroe County Indictment #2012-0449 Brief completed on December 12, 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 REPLY POINT I REPLY POINT A REPLY POINT G REPLY POINT K CONCLUSION TABLE OF CONTENTS The Fourth Department erred in splitting from the other Appellate Divisions when it determined that the Georgia burglary statue is not strictly equivalent to New York's burglary statute Georgia's burglary statute contains the same essential elements as New York's burglary statute Even if a defense is not an essential element of a crime, here the Georgia affirmative defense statutes 1 1 are instructive 4 The lesser-included-offense of criminal trespass along with Georgia case law demonstrates there is strict equivalency between Georgia's burglary statute and New York's burglary statute 7 12 TABLE OF AUTHORITIES FEDERAL CASE Blockburger v United States, 284 US 299 (1932) .................................. 8, 9 GEORGIA CASES Botelho v State, 268 Ga App 129 (Ga Ct App 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Butler v State, 294 Ga App 540 (Ga Ct App 2008) . . . .. . . .. . . . . .. . . . . .. . . . . . . . . . . . .. 10 Coleman v State, 318 Ga App 478 (Ga Ct App 2012) ................................ 10 Daniel v State, 338 Ga App 389 (Ga Ct App 2016), reh denied (2016) ....... , ............ 9 Drinkard v Walker, 281 Ga 211 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Highly v State, 245 Ga App 900 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Philpot v State, 268 Ga 168 (1997) ............................................... 5 Vaughn v State, 210 Ga App 381 (Ga Ct App 1993) .................................. 8 NEW YORK CASES - Low v Hall, 41 NY 104 (1871) .. . ................ .. ...... . . .. ........... . .... . ... 2 People ex ref Kronick v Jackson, 3 AD2d 804 (3d Dept 1957) . .. . . . . .. . . . . .. . . . .. . . . . .. 3 People v Hall, 158 AD2d 69 (1st Dept 1990), lv denied 16 NY2d 940 (1990), 76 NY2d 1021 (1990) ...... . ........... .. ........ ... .... . .................................. 3 People v Helms, 141 AD3d 1138 (4th Dept 2016) .. ... ... ............. .. ..... .... 2, 5, 6 People v Jurgins, 26 NY3d 607 (2015) ...................... . ..................... 4 People v Muniz, 74 NY2d 464 (1989) .. ........................................... 4 People v Olah, 300 NY96, (1949) . ........... . .. . .... .. .. .... . . .................. 4 People v Thompson, 140 AD2d 652 (2d Dept 1988) .................................. 3 People v Toliver, 226 AD2d 255 (1st Dept l996),lv denied 88 NY2d 970 (1996) .. ... . .... . 3 -ii- STATUTES Ga Code Ann§ 16-l-6 .. . ... . ... . . .. .. . ... .. .... . ... ... ... . . . .. . .. .... . .. ... .. .. 7 Ga Code Ann§ 16-2-1 ... .. ..... . . .. ............ ... ...... . .... . ... . ..... .. . . ... . 4 Ga Code Ann § 16-2-2 . ... .. . . . .. .. . . .. . . ....... . . . . ......... . .. .. .... . . . ... . . .. 4 Ga Code Ann§ 16-2-4 . .. ....... . .. . ... . ........ ... ... . . ... .. ..... .. .... . . .. .. . . 4 Ga Code Ann§ 16-2-5 .. .... ..... . ...... . , . ... .. . .. ..... . . . ..... . .. . ... ... ...... 4 Ga Code Ann § 16-3-5 . ... .. . . . ... ... . .. .... . ... .. .. .. ... .. . . . .. .. . .... ... ...... 5 Ga Code Ann§ 16-7-l . .. . ....... . ....... . . . ............................ . ....... 5 Ga Code Ann§ 16-7-21 . .... .. .. . .... .. ..... . ..... . . ... .. . ... .. . .... . . . . . . . . . .. . 8 Penal Law § 70.04 ... .. . .. .... . ... .. ... . . . . .. .. .. ... . . . . .. .. ... . .. ..... ... ..... 1 Penal Law§ 10.25 .... . .. . ....................................... . ...... . ...... 1 -iii- Reply Point I The Fourth Department erred in splitting from the the other Appellate Divisions when it determined that the Georgia burglary statute is not strictly equivalent to New York's burglary statute Prior to the Fourth Department's decision in this case, New York's Appellate Divisions have held that Georgia's burglary statute under Georgia Code Annotated section 16-7-1 is the strict equivalent of New York's burglary statute under Penal Law section 140.25. Defendant committed a burglary in Georgia that was the strict equivalent of a burglary in New York and, as a recidivist, he should be sentenced as a second violent felony offender under New York law (Penal Law § 70.04). Reply Point A: Georgia's burglary statute contains the same essential elements as New York's burglary statute Comparing the words in a statute is not the same as comparing the statute's elements. As elucidated by defendant in his "Gennan Grandmother" example, even when "two words, on their face, seem similar, their meanings are quite different" (Respondent's Brief at page 33). This is why it is critical that this Court contour the strict equivalency test to pennit review of a foreign state's own interpretation of its statute. All of the statutes and case law that impact a defendant's foreign conviction should be included in the strict equivalency test. 1 Defendant's contention that "[n]othing in the majority opinion suggests that the Appellate Division was unwilling to review any relevant statute or case law from the State of Georgia" (Respondent's Brief at page 10) highlights the why the majority's holding is problematic. The majority did review relevant case law and statutes from Georgia, but indicated it was constrained by the law to find that because the word "knowingly" was implicit rather than explicit, it could not uphold the sentencing court's determination. Specifically, the majority recognized that "it is a requirement that a person act intentionally in order to be convicted of burglary in Georgia," but reversed the sentencing's court finding that defendant was a violent predicate felon because on its face, the actual word " 'knowingly' is not included in the statute" (R5; People v Helms, 141 AD3d 1138, 1139 [4th Dept 2016]). The challenge is that this holding does not comport with logic. A person cannot act intentionally without acting knowingly. As this Court explained, "an act must be done with intent . . .. The word knowingly has no force in either clause upon any other construction. No rational person can [commit the act] without doing the act knowingly; but that word has force if guilt is incurred only in cases where the act is done with intent" (see Low v Hall, 47 NY 104, 107 [1871]). 2 As evidenced by its decision recognizing both that a person must act intentionally and that criminal trespass is a lesser included offense in Georgia, the majority of the Appellate Division was not willing to review relevant penal statutes and case law in formulating its decision. Had the court done so, it would have reached the same conclusion that the First, Second, and Third Departments previously reached finding that Georgia's burglary statute is the strict equivalent of New York's (see People v Toliver, 226 AD2d 255 [1st Dept 1996], lv denied 88 NY2d 970 [1996]; People v Hall, 158 AD2d 69 [1st Dept 1990], lv denied 16 NY2d 940 [1990], 76 NY2d 1021 [1990]; People v Thompson, 140 AD2d 652, 654 [2d Dept 1988]; People ex ref. Kronick v Jackson, 3 AD2d 804 [3d Dept 1957]). If the strict equivalency test is an exact word-to-word comparison without any consideration given to synonyms, a court would not be needed to determine equivalency. Strict equivalency would be a formulaic comparison that could be performed by a basic algorithm. That would be untenable. The law is too complex, and the ramifications to our communities are too serious, to reduce this area of law to a simple "apples-to-apples" approach. 3 REPLY POINT G Even if a defense is not an essential element of a crime, here the Georgia affirmative defense statutes are instructive As discussed in our main brief, under People v Olah (300 NY 96, 105 [1949]) and its progeny, a sentencing court's evaluation of whether a recidivist offender's foreign conviction is equivalent 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]). Even if an afflflDative defense cannot be considered an essential element of a crime, these affmnative defense statutes are instructive in that they fill the negative space created around the void of the word "knowingly" in Georgia Code Annotated section 16-7-1. Through this negative space, it becomes obvious, that although silent, the prosecution in Georgia is required to prove beyond a reasonable doubt that a person acted "knowingly" when committing a burglary. Indeed, the Georgia affirmative defense statutes provide that a person may 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" (Ga Code Ann§ 16-2-2) or "if the act or omission to act 4 constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission" (Ga Code Ann§ 16-3-5). Thus, in order to commit a crime, including the crime of burglary in Georgia, a person must act knowingly. The State of Georgia considers "knowingly" to be so commonly understood that it does not define the term in any statute. As Georgia's highest court explained, the word ''knowingly" is "not in any sense technical or [a] wor[d] of art, the meaning of which would not be understood by people of ordinary experience and understanding" (Philpot v State, 268 Ga 168, 171 [1997]). The same goes for the implicit understanding that a person acts "knowingly" when he or she acts "without authority and with the intent to commit a felony or theft therein" (Ga Code Ann§ 16-7-1). Further, as laid out by the dissenting Justice at the Appellate Division, Georgia penal statutes define all Georgia crimes as "a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence" (Ga Code Ann§ 16-2-1 [a]; see R7-R8; Helms, 141 AD3d at 1143). Dissenting Justice Curran further explains that "Georgia also delineates that '[t]he acts of a person of sound mind and discretion are presumed to be the product of the person's will but the presumption may be rebutted'(§ 16-2-4), and 5 '[a) person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted'(§ 16-2- 5)" (R8; Helms, 141 AD3d at 1143). Thus, in Georgia, it is impossible to commit the crime of burglary without doing so knowingly, and based on these statutes, it is an essential element that the prosecution must prove beyond a reasonable doubt. 6 REPLY POINT K The lesser-included-offense of criminal trespass along with Georgia case law demonstrates there is strict equivalency between Georgia's burglary statute and New York's burglary statute Georgia's law for lesser included offenses operates in the same manner as New York law. Thus, Georgia's legislature's use of the tenn "knowingly" in its criminal trespass statute is dispositive given that criminal trespass in Georgia is a lesser included offense of burglary. As a threshold matter, in Georgia an included and a lesser included offense is determined by both statute and common law. Under Georgia Code Annotated§ 16-1-6: "An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when: (1) It 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 crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission." As addressed by defendant, in 2006, the Georgia's highest court, the Supreme Court of Georgia adopted the "required evidence" test established by the United 7 Stated Supreme Court (see Drinkard v Walker, 281 Ga 211 [2006]; see Blockburger v United States, 284 US 299, 304 [1932]; Respondent's Brief, Page 36 at footnote 3). Under that test, it is well settled that "[w]here the intent to steal is proved, the crime of criminal trespass merges with or is included within the crime of burglary" (Vaughan v State, 210 Ga App 381, 384 [Ga Ct App 1993]). This would be impossible if "knowingly" was not implicitly included as an essential element of acting "without authority and with the intent to commit a felony or theft therein" contained in the burglary statute because Georgia's criminal trespass statute requires, a person act "knowingly and without authority" (Ga Code Ann§ 16-7-21). Contrary to defendant's contention that the lesser included offense "has nothing to do with importing a second mens rea element into Georgia's burglary statute" (Respondent's Brief at page 36), there is no importation of an element. Rather, the lesser offense, which under Georgia law, contains "a less culpable mental state," ie: "knowingly" rather than "without authority and with the intent to commit a felony or theft therein," demonstrates that this verbiage implicitly contains within it the essential element of "knowingly." Earlier this year, in upholding a burglary conviction, a Georgia appellate court explained that "since there was no evidence of any intent other than that set 8 out in the indictment, to commit a theft, the requested charge on trespass as a lesser offense was not supported by evidence" (Daniel v State, 338 Ga App 389, 392 [Ga Ct App 2016], reh denied [2016] [internal quotation and punctuation omitted]). The Georgia appellate court further explained: "'(w]e have held that the trial court must give a requested charge on criminal trespass as a lesser included offense of burglary where the testimony of the accused if believed, would negate an element of the crime of burglary (entry with intent to commit a felony or theft). Specifically, where the accused admits the unauthorized entry but denies the intent to conunit a felony or theft, the trial court must give a requested charge on the lesser included offense of criminal trespass'" (id. at 391, quoting Hiley v State, 245 Ga App 900 [2000]). This construction would be untenable unless "knowingly" was an essential element of Georgia's burglary statute. Georgia's case law is further instructive that a person must act knowingly to be convicted of burglary. In evaluating the legal sufficiency of a burglary conviction a Georgia appellate court found, "that the jury was authorized by this evidence to find [the defendant] guilty beyond a reasonable doubt of knowingly participating in the burglary" (Botelho v State, 268 Ga App 129, 131 [Ga Ct App 2004]). Further, in a case of accomplice liability, a Georgia appellate court affirmed the defendant's burglary conviction "where knowledge on the part of [defendant] that the crime of burglary was being committed and that he knowingly 9 and intentionally participated in that crime" (Butler v State, 294 Ga App 540, 544 [Ga Ct App 2008]). It would be impossible to knowingly participate in a crime while unknowingly committing the crime. Additionally, in evaluating the sufficiency of an indictment for attempted burglary, the appellate court in Georgia found the accusatory sufficient to plead that the defendant attempted to commit burglary given that the defendant" 'attempted' to commit the crime of burglary by 'knowingly and intentionally' performing acts which constitute a substantial step toward the commission of the crime" (Coleman v State, 318 Ga App 478,480-481 [Ga Ct App 2012]). Contrary to defendant's contention and the majority Appellate Division's holding, the fact that Georgia includes the word "knowingly" in the lesser- included offense of criminal trespass is dispositive that it is an element of the higher Georgia burglary statute. Georgia, need only substitute the word "knowingly" in the lesser included offense when the element of "without authority and with intent to commit a felony," is eliminated. That is because the verbiage "without authority and with intent to commit a felony," impliedly contains the essential element of "knowingly." In New York and Georgia a burglary is committed exactly the same way with the same essential elements. Contrary to defendant's contention, to lO determine the equivalency between the New York and Georgia crime of burglary, "mix-and-match logic" is not required (see Respondent's Brief at page 38). Rather, only "a comparison of the crimes' elements as they are respectively defined in the foreign and New York penal statutes" and interpreted by the courts must be used to find equivalency. II 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 full statutory definitions and to case law from that state. The order of the Appellate Division should be reversed, defendant's resentence vacated, and defendant' s original sentence as a second violent felony offender should be reinstated. Dated: December 12, 2016 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney ~tis:~ 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, certify that the word- processing system's word count used to prepare this reply brief indicates that 2,223 words were used in the body of this reply brief. 12 STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -vs- I MARLO s. HELMS, Defendant-Respondent. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL APL-2016-00168 Catherine McFarlane, 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 12th day of December, 20 16, deponent served three (3) copies o the Reply Brief for appellant, upon David R. Juergens, Esq., attorney for defendant- respondent in this action at 10 North Fitzhugh St., Rochester, New York, 14614, by depositing a true copy 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. Sworn to before me this 12th day of December, 20 16. • Roxanne M. Emler Notary Puhlic. St:ltC of New York 01EM6203185 qualif ied in Monroe County ,_ • _.,....,.."": .. .-ln" Avf"'ir• ct M::ar. :lO.~ '7